ernment; but no evidence to that effect was offered. The Lord Chief Justice is reported to have said that, "if any such evidence had been produced, he should have held it fit to be received against the claim made by the plaintiff."

This ruling was correct; for the question of damages would have been clearly affected by proof showing that the publication of the manuscripts by the author would have been unlawful by reason of their seditious character. And to this extent only go the expressed views of the Chief Justice who presided at the trial. But this dictum, on which Lord Eldon based his decision in Southey v. Sherwood, gives no support whatever to the doctrine there affirmed. There was a vital distinction between the two cases. Southey claimed the right to prevent publication; whereas Dr. Priestley sued for the loss of profits, which he alleged he might have realized by publication.1

PUBLICATION.

We may now inquire what is a publication of an intellectual production, and what kind of a publication it is that works a forfeiture of the owner's common-law rights. Properly speaking, a work is published when it is communicated to the general public. Literary, dramatic, and musical compositions may be published by being read, represented, or performed, or by the circulation of printed or manuscript copies. Paintings, works of sculpture, and similar productions, are published when publicly exhibited. In short, to publish a thing is to make it public by any means or in any manner of which it is capable of being communicated to the public.2 At common law, the

1 Lord Campbell has sharply criticised the decision of Lord Eldon in Southey v. Sherwood, and also that in Wolcottv. Walker. See Chap. III., note.

2 In Prince Albert v. Strange, ViceChancellor Bruce held, that to publish a descriptive catalogue of etchings or drawings amounts to a publication of them. 2 De G. & Sm. 652, 694. In Turner v. Robinson, it was held that printing in a magazine an engraving of a painting was a publication of the engraving, but not of the painting.

"It is by publication of the thing itself," said the court, "that the common-law right is lost, and not by the publication of something else." 10 Ir. Ch. 121, 133. And so the court said that the publication of a bust would not be a publication of the statue itself. Ibid.

If publication of an engraving of a picture is not a publication of the picture itself, publication of a descriptive catalogue of etchings cannot be a publication of the etchings. What the court meant in Prince Albert v.

word publication may be used in this large sense; but it has a more restricted signification when used with reference to the statutes conferring copyright. The latter meaning will be considered after it has been shown that the common-law rights in a work are forfeited only when it is published within the meaning of the statute.

Author's Rights after Publication not lost by Common Law, but taken away by Statute. At common law, the ownership of literary property is not lost by any publication of the work. A literary composition may be published in print or read to the public, a dramatic or musical composition may be publicly performed, a work of art may be publicly exhibited, without prejudice to the owner's rights or the remedies for the protection of those rights. The rights and the remedies are the same after as before publication. When these rights are lost by publication, it is not by force of the common law, but by operation of the statute, as it has been judicially construed. This principle is put beyond doubt by the judgment pronounced by the House of Lords in 1774 in Donaldson v. Becket.1 Before this decision was rendered, the courts of chancery had uniformly recognized and protected common-law copyright in printed books; and the court of King's Bench, after an exhaustive examination of the question, had affirmed, in Millar v. Taylor, that the exclusive rights of an author in his work were not lost by publication, either by operation of the common law or of the statute. In Donaldson v. Becket, the House of Lords held that there was no copyright in a printed book, except that given by the statute. But this judgment was based on the ground that the common-law right had been taken away by the statute. To this extent it overruled Millar v. Taylor. But it left undis

Strange was, that the plaintiff's common-law property in the etchings was violated by a publication of a descriptive catalogue. What the court meant in Turner v. Robinson was, that the owner's common-law rights in the painting were not lost when he published an engraving of it. It was further argued in the latter case that the sale of the painting by the owner amounted to a publication destruc

2

tive of the common-law property in the painting. The Master of the Rolls said that this theory was "destitute of all color of foundation." 10 Ir. Ch. 143.

1 4 Burr. 2408.

2 Eyre v. Walker, Motte v. Falkner, Walthoe v. Walker, Tonson v. Walker, cited 4 Burr. 2325; Tonson v. Walker, 3 Swans. 672.

3 4 Burr. 2303.

turbed the principle affirmed in the latter case, that publication does not, by force of the common law, work an abandonment of the owner's rights. Nine of the twelve judges summoned in Donaldson v. Becket were of opinion that, by the common law, the copyright in a book is not lost by its publication in print. The decision of the House of Lords was not against this doctrine, and may fairly be assumed to have been in harmony with it. This judgment of the highest judicial tribunal of England has since continued to be the controlling authority on the law and the principles involved in the question under consideration.

It is true that the Supreme Court of the United States held, in Wheaton v. Peters, that the statute of 1790 did not sanction an existing right, but created one.2 The reason given for this conclusion was, that the common law of England relating to literary property did not prevail in the United States. This doctrine, if it ever had any support, may now be regarded as exploded. The court further held that, even if the common law did prevail in this country, as the statute of Anne had been construed in England to have taken away the common-law property in published works, the same construction should be given to the act of Congress. This is the only ground which can support the decision of the court, and this rests solely on the precedent of Donaldson v. Becket. The law, as declared by the House of Lords in that case, was followed with approval by the Supreme Court in Wheaton v. Peters, and it has been followed in every English and American decision which affirms the doctrine, that there can be no copyright after publication, except under the statute. Hence, the doctrine may be regarded as well grounded, both in England and the United States, that, when an author loses his rights by publishing his work, it is by operation of the statute, and not of the common law. This principle has an important bearing in determining the commonlaw rights of authors in their productions, and will serve to make the law clear in some cases whose adjudication might otherwise be attended with doubt and difficulty, and perhaps injustice.

1 See ante, pp. 37, 42.

28 Pet. 591, 654. 3 See ante, p. 47.

When Common-Law Rights are Lost by Publication. - In determining whether the author's rights are forfeited by a publication of his work, two tests are to be applied: 1, whether there is any statute relating to the species of production for which protection is sought, or governing the kind of right which is claimed; 2, whether the work has been published within the meaning of the statute. The former inquiry will be first considered.

As the owner of any work has by the common law an exclusive right to publish it, and that right is not lost after publication by virtue of the common law, but is taken away solely by operation of the statute, it is obvious that, if no statute has been passed, the force of the common law will not be annulled. It is equally true that, when a statute is passed to regulate copyright in a certain class of works, it may destroy the commonlaw right after publication in any work embraced within its operation, but not in one of a different class to which the statute does not apply. Thus, the statute of Anne related exclusively to books. It did not apply to works of art, and hence could not take away or change the owner's common-law rights in such works. But the statutes since passed regulating the copyright in paintings and works of sculpture will doubtless be held to have the same effect on the common-law property in such productions as the statute of Anne had in the case of books. So, also, the act of Anne regulated only the right of printing books. Hence, it could not properly be construed to take away the exclusive right of the author at common law publicly to perform his unprinted plays. But the 3 & 4 Will. IV. c. 15, which regulates playright, may be held to annul the corresponding common-law right.

The second test to be applied in determining whether the common-law right is destroyed by publication is, whether the work has been published within the meaning of the statute. The statute does not apply to a work not so published, and hence can have no effect on the common-law rights therein.

What, then, is a publication within the meaning of the statute? This question is more fully considered in treating the same topic in another connection. It is there shown that

1 See Chap. V., Publication.

no English or American statute regulating copyright in a literary composition takes effect until the composition is published in print, or by the public circulation of copies. Until such publication takes place, the common-law rights continue in full force. Hence, the owner of a literary composition which has not been published in print or by the circulation of copies may read it or permit it to be read in public, without any prejudice to his common-law rights therein.1

This statement must be qualified in the case of dramatic compositions under the English, but not the American, law. In the United States, there is no statute governing the right of representing or performing a manuscript dramatic or musical composition. Hence, the common-law rule applies, and the owner's rights are not lost by the public representation or performance of such composition.2 The law was the same in England until the 3 & 4 Will. IV. c. 15, was passed, which, as extended and amended by the 5 & 6 Vict. c. 45, s. 20, now regulates the exclusive right of representing and performing dramatic and musical compositions. These statutes apply to manuscript as well as to printed productions, and, within their meaning, the public representation or performance of a manuscript composition is a publication. On the principle that common-law copyright in a book is lost by publishing it in print, the common-law playright in a manuscript dramatic or musical composition must be forfeited by its public representation or performance.1

Before the existence of statutory copyright in paintings, it was properly held by the Irish Chancery Court that the owner's common-law rights in a painting were not prejudiced by his public exhibition of it, or by the publication in a magazine of an engraving and a description of the painting. But, since

1 Abernethy v. Hutchinson, 1 Hall & Tw. 28; Bartlett v. Crittenden, 4 McLean, 300, 5 Id. 32; Keene v. Kimball, 16 Gray (82 Mass.), 545; Boucicault v. Fox, 5 Blatchf. 87.

2 See Chap. XIII.

3 Coleman v. Wathen, 5 T. R. 245; Morris v. Kelly, 1 Jac. & W. 461. See also Macklin v. Richardson, Amb. 694. 4 See Chap. XIII.

5 Turner v. Robinson, 10 Ir. Ch. 121, 510. "If there was no statute protecting copyright in literary works," said the Master of the Rolls, "and Sir Walter Scott had read out Waverley to a large party of friends, it is idle to say that such would have amounted to a publication, so as to have deprived him of his common-law right; and the painter or the owner of à painting,