this decision was rendered, a statute has been passed regulating the copyright in paintings. Copyright in works of sculpture is likewise governed by statute.2 In the United States, also, paintings and sculpture are subjects of statutory protection. Whether the common-law property in such works is lost by the public exhibition of the original, or by the circulation of engravings, photographs, or other copies, will depend on what is a publication of the work within the meaning of the statute. This is a difficult question, which is considered elsewhere in this work.3 The conclusion, then, to which we are brought is, that no common-law rights in a work are lost by publication, unless there be a statute to take away these rights, and unless the work be published within the meaning of the statute. This principle, as has been seen, was in effect affirmed in Donaldson. v. Becket, and in Wheaton v. Peters,5 by the highest judicial tribunals of England and of the United States, whose judgments are still supreme. But, inferior courts have in some cases lost sight of it, and hence have given weight to considerations which were clearly irrelevant. Thus, in Turner v. Robinson, it was held that the owner's common-law rights in a painting were not lost by its public exhibition. This was sound, because there was then no statute to take away these rights. But the court attached much importance to the fact that the painting was exhibited for the special purpose of securing subscribers for an engraving of it, and to the fact that the public had been warned, by notice, against taking photographic or other copies of the work. Neither of these considerations had any true bearing on the question. So, also, in the United States, there is no statute who exhibits it at such exhibitions as those of London, Dublin, and Manchester, and, having regard to the object of such exhibitions, should be considered as allowing it to be viewed by the public, on a tacit understanding that an improper advantage would not be taken of the privilege thus granted; and I am disposed to think, without reference to the letters I have read, that such an exhibition would not be a publication so as to deprive a painter, or the owner of a painting of his common-law right." Ibid. 140. 125 & 26 Vict. c. 68. 2 54 Geo. III. c. 56. See also 13 & 14 Vict. c. 104, s. 6. 3 See Chap. V., Publication. 6 10 Ir. Ch. 121, 510. regulating the right of representing manuscript plays. This right is governed solely by the common law, and hence is not lost or prejudiced by the public performance of the play. But, in several cases involving this question, the courts have elaborately discussed every principle which could be brought to bear on the subject but the right one, and have gravely affirmed or recognized theories which are as absurd as they were irrelevant. Such, for instance, are the notions that a "restrictive notice" to the audience is necessary to save the property in a manuscript drama from being lost by public representation, and that the right of representing a play against the will of the owner may be acquired by means of the memory of any person who has witnessed its public performance.1 The owner's common-law rights are not lost by a publication which is made without his authority. In that case, the act is not his, and he cannot rightly be held responsible for what is done without his knowledge or consent.2 But long acquiescence may amount to abandonment.3 Private Circulation of Copies not a Publication. -It may sometimes be difficult to determine whether the use which the owner makes of his production does or does not amount to a publication within the meaning of the statute. There is no doubt that the general unrestricted circulation of printed copies is such a publication, and the principle would seem to be the same when manuscript copies are so circulated. But it is clear that a private circulation for a restricted purpose is not a publication. Thus, in Prince Albert v. Strange,5 it appeared that Queen Victoria and her husband had given to their intimate friends lithographic copies of drawings and etchings, which they had made for their own amusement. This was held to be a private circulation of copies, and hence not a publication. 6 In Bartlett v. Crittenden it appeared that the plaintiff, who was a teacher of book-keeping, had written his system of I See Chap. XIII. 2 Boucicault v. Wood, 2 Biss. 34, 39; Crowe v. Aiken, Biss. 208; Palmer v. De Witt, 2 Sweeny (N. Y.), 530, 551; on ap. 47 N. Y. 532; Shook v. Neuendorf, 11 Daily Reg. (N. Y.) 985. 8 See acquiescence considered in Chaps. XI., XIII. 4 See Chap. V., Publication. 5 2 De G. & Sm. 652; on ap. 1 Mac. & G. 25. 6 See also Keene v. Wheatley, 9 Am. Law Reg. 33. 74 McLean, 300, 5 Id. 32. instruction on separate cards, for the convenience of giving instruction to his pupils. He had permitted them to copy these cards for their own convenience, and to enable them to instruct others. The defendant published copies of the cards which he had obtained while a pupil in the school; and maintained that the complainant, by permitting his manuscripts to be so copied, had abandoned them to the public. The Circuit Court of the United States held this to be a private circulation of copies, which did not prejudice the owner's common-law rights. "The students of Bartlett who made these copies," said Mr. Justice McLean, "have a right to them and their use as originally intended. But they have no right to a use which was not in the contemplation of the complainant and of themselves when the consent was first given. . . . The lecturer designed to instruct his hearers, and not the public at large. Any use, therefore, of the lectures, which should operate injuriously to the lecturer, would be a fraud upon him for which the law would give him redress." This action was brought under section 9 of the act of 1831; but it could not have been maintained if the use which the owner had permitted to be made of his manuscript had amounted to a publication within the meaning of the statute. A recent case in the Supreme Court of New York presents a question as difficult as it is novel.2 It appeared that the plaintiff, Kiernan, had bought from the Stock and Gold Telegraph Company the exclusive right to use their foreign financial news in a certain part of the city of New York, for the period of fifteen minutes after its receipt. This news was collected in Europe, and transmitted by cable to this country by the Associated Press, from whom the Stock and Gold Company had acquired the exclusive right of use, in New York City, for the period of thirty minutes after its receipt. As soon as received, the news was telegraphed by Kiernan and the Stock and Gold Company to their respective customers, and in all parts of the city was exposed to public gaze by means of printed tapes connected with stock indicators. The Manhattan Quotation Telegraph Company, which was also engaged in 14 McLean, 303, 304. See also Abernethy v. Hutchinson, 1 Hall & Tw. 2 Kiernan v. Manhattan Quotation Telegraph Co., 50 How. Pr. (N. Y.) 194. the business of supplying foreign financial news to its customers, had copied telegrams from Kiernan's bulletins and tapes, as well as from those of the Stock and Gold Company. On the ground of an invasion of his common-law property, Kiernan applied for an injunction to restrain the Manhattan Company from supplying to their customers the information thus ob tained. It is clear that, before it is forfeited by publication, there is a common-law property in valuable facts and information which have been collected and utilized by skill, diligence, and expense. The pivotal question here was, whether there had been a publication in the statutory meaning of that word. It is well settled in this country, as has been seen, that a literary composition is published, within the meaning of the statute, when printed copies are publicly circulated; and that the owner's rights are thereby lost, unless protected by statute. On the other hand, it is equally clear that publicly to represent a drama, or to communicate any literary composition to the public by word of mouth, is not such a publication as will prejudice the owner's common-law rights. But which of these rules governs when the communication to the public is by means of bulletins and printed tapes exposed in public places? If this is a publication analogous to the ordinary public circulation of printed copies, it is destructive of the owner's common-law rights. If it is not, those rights are not thereby prejudiced. The court was of opinion that this case was governed by the same principle as that which applies in the case of dramatic performances and the delivery of lectures, and held that giving news to the public in the manner described is not such a publication as will destroy the owner's common-law rights. Whether this decision can be successfully defended on established legal principles, is a question attended with much doubt. The difficulty is in satisfactorily determining a question of fact. If such news had been published in a newspaper, or if it had been given to subscribers on printed sheets, there is little doubt that this would have amounted to a publication within the meaning of the statute. And yet it may be pertinently asked, Wherein is the principle different, whether the information be communicated to the public in this way or by means of telegraphic copies printed on bulletins? In both cases the matter is printed, and copies are circulated. In neither is the communication private, or restricted as to persons. In both it may be and is read by the general public as soon as it is printed. It is true that the news is intended primarily for the benefit of those who pay for its use; but, nevertheless, it is communicated to the general public. The matter in a newspaper or book is primarily for the benefit of buyers; but a general circulation of copies is none the less a publication. It would seem, therefore, that a communication of the kind under consideration is more nearly analogous to an ordinary publication in print than it is to a publication by word of mouth. But it is a doubtful and difficult question, whose solution will not be attempted here. The common-law property in dramatic and musical compositions is more fully treated under the head of Playright.1 STATUTORY PROTECTION FOR MANUSCRIPTS. There can be no statutory copyright in an unpublished work. But in the United States a remedy for the unauthorized publication of a manuscript is specially given by the statute. Section 4967 of the existing law 2 declares, that "every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury." Section 9 of the act of 1831 gave similar redress for damages, and also a remedy by injunction to prevent or restrain the unauthorized publication.8 The latter remedy is not expressly given by the subsisting statute; but it has been held that the owner is entitled, under the statute, to an injunction restraining the unlicensed publication of his manuscript. To entitle a person to the benefit of this provision, it is not necessary that the whole of his manuscript shall be published 1 Chap. XIII. 2 U. S. Rev. St. 3 4 U. S. St. at L. 438. Boucicault v. Hart, 13 Blatchf. 47. |