wrought in the author's meaning. "I cannot think," he said, "that merely because the alteration consists in one word, that is necessarily conclusive against its being of sufficient importance to create copyright in the new edition. A word may often be of very great importance. I suggested, in the course of the discussion, the supposition that, in a new edition of the Bible, the first verse in Genesis, instead of bearing, 'In the beginning God created the heaven and the earth,' were made to run, In the end God created the heaven and the earth,' this would not the less alter or affect the whole book, because the alteration consisted in a single word. . . . We must look to what the poem is about. It is simply this: The knight says in substance to his squire Roland Cheyne, 'Here is this hostile chieftain coming upon us with twenty thousand men, and we are only two hundred. It would be disgraceful to run, and yet to fight would be wondrous peril. What would you do if you were in my place?' The squire's answer is:

'Were I Glenallan's Earl this tide,

And ye were Roland Cheyne,

The spur should be in my horse's side,
And the bridle upon his mane.'

That is to say, that if he were the earl he would slacken the bridle, put spurs to his horse, and ride straight at the foe. Can anybody read that verse with the context, and suppose the meaning to be that he would lay the bridle on the horse's mane, and thrust his spear into the horse's side? It would not make such nonsense, if you were to hold him to have been made to say that the spear would be at his horse's side, or on his horse's side. Still it would be weak. The spear may be supposed to have been previously in its proper place like the rest of the accoutrements; and what the squire is speaking about is the alteration he would make for rushing at the enemy full speed. He would lay the bridle on the horse's mane, and strike the spur into his side. The sense is destroyed if you make it any thing else. The whole edition was published with that blot. I would not keep a copy of that edition in my library if the other could be had, or without correcting it, if it could not. It would unquestionably be a blot of a most disagreeable kind. The alteration

was, in my opinion, a material alteration; and I am, therefore, of opinion that the second edition of the poem was copyright."1

Lord Kinlock expressed a decided opinion that the change of a single word was not enough to create a title to copyright. The other two judges, the Lord President and Lord Ardmillan, considered it unnecessary to determine this question; because the defendant, in republishing the poem, while copying the plaintiff's revised reading, had also changed a word in one of the stanzas, which introduced a reading different from that found in either the original or the revised edition of the ballad. The court regarded this as evidence that the defendant was not guilty of "a slavish adherence to the copyright edition," and

19 Sc. Sess. Cas. 3d ser. 351-352. Lord Deas further said: "The case before us is the case of a poem of eleven verses only, which no one can read without seeing that it is a beautifully finished composition, the alteration of a single word of which may be sufficient to mar the whole. The alteration of a word in any one verse might be material. Suppose, for instance, that in the second verse, where it says, 'The cronachs cried on Bennachie, And down the Don and a',"

it had been written,—

The children cried on Bennachie,
And down the Don and a","

that would have made the whole thing
ludicrous. Or, suppose in the next
verse, where it is said, -

'They saddled a hundred milk-white steeds,
They hae bridled a hundred black,
With a chafron of steel on each horse's head
And a good knight upon his back,'

it had been said in the last line, and a woman upon his back,' what kind of an effect would that have had? Again,

tuted for 'as,' so that he was made to say,

My horse shall ride through ranks sae rude And through the moorland fern,' that would not have been ludicrous like the above examples, but it would have been so weak and meaningless as to have destroyed the vigor of the whole poem. It is impossible to say, therefore, that the alteration of a word may not be of great importance. Mention was made, a little ago, of the song we are all familiar with, The Flowers of the Forest. Now, suppose that the first line of that song, as published, had been, The fowls of the forest,' or perhaps, The fools of the forest.' The last, for any thing I know, might have been defended by those who defend spear' in the present instance; for, Shakespeare has made classical 'a fool i' the forest,' and Sir Walter was fond of introducing a sylvan char acter of that kind into his novels.

But

I think few people would doubt that the author who corrected the word he found in circulation of his song, 'fowls' or 'fools,' in the only edition into flowers,' would have had copy'My horse shall ride through ranks sae rude, right in the new edition, although he As through the moorland fern,'

take the last verse :

meaning that he would ride as easily through the hostile ranks as he would through the moorland fern. But suppose the word 'and' had been substi

had none in the old.

"The question, therefore, comes to be, not the extent of the alteration in the present instance, but whether it was material." Ibid. 351-353.

held, in the language of the Lord President, that "the proprietors of the copyright must just console themselves with the reflection that while the pirate has here stole a very little bit of their property, he has spoiled the poem otherwise by an emendation of his own."1

While this decision does not determine the question whether in any case the change of a single word may be sufficient to create a title to copyright in a new edition, the discussion is important as showing that when a material change has been wrought in the substance of a composition by very slight alterations in its form, the court will consider the effect produced, -the improved meaning, rather than the extent of the verbal changes.

COMPILATIONS.

The doctrine is well settled in England and the United States, that existing materials selected from common sources, and arranged and combined in an original and useful form, become a proper subject of copyright. This is equally true whether the compilation consist wholly of selected matter, or of such matter combined with original composition; and, in either case, it is immaterial whether the materials are obtained from published or unpublished sources, or whether the selections are used bodily, or their substance is given in the language of the compiler. Such works are often the result of industry, learning, and good judgment, and are useful and valuable contributions to knowledge. They are entitled to, and will receive, the same protection extended to productions wholly original.2

19 Sc. Sess. Cas. 3d ser. 350.

2 "Copyright may justly be claimed by an author of a book who has taken existing materials from sources common to all writers, and arranged and combined them in a new form, and given them an application unknown before, for the reason that in so doing he has exercised skill and discretion in making the selections, arrangement, and combination, and having presented something that is new and useful, he is entitled to the exclusive enjoyment of his improvement as provided in the

copyright act. Books' made and composed' in that manner are the proper subjects of copyright; and the author of such a book has as much right in his plan, arrangement, and combination of the materials collected and presented, as he has in his thoughts, sentiments, reflections, and opinions, or in the modes in which they are therein expressed and illustrated; but he cannot prevent others from using the old material for a different purpose. All he acquires by virtue of the copyright is the sole right and liberty of

These principles have been judicially recognized in the case of the following productions: general miscellaneous compilations; annotations consisting of common materials; 2 dictionaries; books of chronology; gazetteers; 5 itineries, road and guide books; 6 directories; maps and charts; calendars; catalogues; 10 mathematical tables; 11 a list of hounds; 12 abstracts of titles to lands; 13 and collections of statistics,14 statutory forms,15 recipes,16 and designs.17

The compilation may consist of common facts and information which the compiler himself has reduced to writing, as in the case of a catalogue or a directory; of materials obtained from manuscripts, as a collection of statistics taken from unpublished official records; 18 or of selections made from

printing, reprinting, publishing, and vending such book' for the period prescribed by law. Others may use the old materials for a different purpose, but they cannot copy and use his improvement, which includes his plan, arrangement, and combination of the materials, as well as the materials themselves, of which the book is made and composed." Clifford, J., Lawrence v. Dana, 2 Am. L. T. R. N. s. 423.

1 Br. Jarrold v. Houlston, 3 Kay & J. 708; Pike v. Nicholas, 20 L. T. N. s. 906, on ap. Law Rep. 5 Ch. 251; Mack v. Petter, Law Rep. 14 Eq. 431; Hogg v. Scott, 18 Id. 444. Am. Gray v. Russell, 1 Story, 11; Emerson v. Davies, 3 Id. 768; Webb v. Powers, 2 Woodb. & M. 497; Greene v. Bishop, 1 Cliff 186; Lawrence v. Cupples, 9 U. S. Pat. Off. Gaz. 254.

2 Story's Executors v. Holcombe, 4 McLean, 306; Lawrence v. Dana, 2 Am. Law T. R. N. s. 402; Banks v. McDivitt, 13 Blatchf. 163; Black v. Murray, 9 Sc. Sess. Cas. 3d ser. 341.

3 Barfield v. Nicholson, 2 Sim. & St. 1; Spiers v. Brown, 6 W. R. 352. 4 Trusler v. Murray, 1 East, 362,

note.

5 Lewis v. Fullarton, 2 Beav. 6. 6 Cary v. Faden, 5 Ves. 24; Cary v. Longman, 1 East, 358; Murray v. Bogue, 1 Drew. 353.

7 Kelly v. Hooper, 4 Jur. 21; Kelly v. Morris, Law Rep. 1 Eq. 697; Morris

v. Ashbee, 7 Id. 34; Mathieson v. Harrod, Ibid. 270; Morris v. Wright, Law Rep. 5 Ch. 279; Kelly v. Hodge, 29 L. T. N. s. 387.

8 Blunt v. Patten, 2 Paine, 393, 397; Stevens v. Cady, 14 How. 528; Stevens v. Gladding, 17 Id. 447; Farmer v. Calvert Lithographing, Engraving, & Map-Publishing Co., 5 Am. L. T. R. 168; Rees v. Peltzer, 75 Ill. 475; Stannard v. Lee, Law Rep. 6 Ch. 346.

9 Matthewson v. Stockdale, 12 Ves. 270; Longman v. Winchester, 16 Id. 269.

10 Wilkins v. Aikin, 17 Ves. 422; Hotten v. Arthur, 1 Hem. & M. 603; Hogg v. Scott, Law Rep. 18 Eq. 444.

11 M'Neill v. Williams, 11 Jur. 844; King v. Reed, 8 Ves. 223, note; Baily v. Taylor, 3 L. J. (Ch.) 66, 1 Russ. & My. 73.

12 Cox v. Land & Water Journal Co., Law Rep. 9 Eq. 324.

13 Banker v. Caldwell, 3 Minn. 94. 14 Scott v. Stanford, Law Rep. 3 Eq. 718; Maclean v. Moody, 20 Sc. Sess. Cas. 2d ser. 1154; Walford v. Johnston, Ibid. 1160, note.

15 Alexander v. Mackenzie, 9 Sess. Cas. 2d ser. 748.

16 Rundell v. Murray, Jac. 311. 17 Grace v. Newman, Law Rep. 19 Eq. 623.

18 Scott v. Stanford, Law Rep. 3 Eq. 718; Maclean v. Moody, 20 Sc. Sess. Cas. 2d ser. 1154.

published works. But in all cases the compiler must have a right to use the materials constituting his compilation. They must be gathered from common sources; or, if they are not, he must have authority to appropriate them, unless the use made of them be such as not to amount to piracy. He cannot make other than a "fair use" of a copyrighted publication, without the consent of the owner.

Materials need not be new. — It is no objection to the copyright in a compilation that the compiler is not the author of its component parts; that all the materials used may be found in other publications. Selecting, arranging, and combining existing materials in a useful form is recognized by the law as an act of authorship, and as creating a title to exclusive ownership.1 In Lawrence v. Dana, where the plaintiff claimed

1 "It is a great mistake to suppose, because all the materials of a work or some parts of its plan and arrangements and modes of illustration, may be found separately, or in a different form, or in a different arrangement, in other distinct works, that therefore, if the plan or arrangement or combination of these materials in another work is new, or for the first time made, the author, or compiler, or framer of it, (call him which you please,) is not entitled to a copyright. The reverse is the truth in law, and, as I think, in common sense also. It is not, for example, in the present case, of any importance that the illustrating of lessons in Arithmetic by attaching unit marks representing the numbers embraced in the example, may be found by dots in Wallis's Opera Mathematica, (p. 28); or in Colburn's Arithmetic in the form of upright linear marks, in a pamphlet detached from the main work. That is not what the plaintiff purports to found his copyright upon. He does not claim the first use or invention of unit marks for the purpose above mentioned. The use of these is a part of and included in his plan; but it is not the whole of his plan. What he does claim is 1, the plan of the lessons in his book; 2, the execution of that plan in a certain arrangement of a set of

tables in the form of lessons to illustrate those lessons; 3, the gradation of examples to precede each table in such manner as to form with the table a peculiar and symmetrical appearance of each page; 4, the illustration of his lessons by attaching to each example unit marks representing the numbers embraced in the example. It is, therefore, this method of illustration in the aggregate that he claims as his invention; each page constituting of itself a complete lesson; and he alleges that the defendants have adopted the same plan, arrangement, tables, gradation of examples and illustrations by unit marks, in the same page, in imitation of the plaintiff's book, and in infringement of his copyright, and, in confirmation of this statement, he refers to divers pages of his own book in comparison with divers pages of the book of the defendants.

"Now I say that it is wholly immaterial whether each of these particulars, the arrangement of the tables and forms of the lessons, the gradation of the examples to precede the tables, the illustration of the examples by unit marks, had each existed in a separate form in different and separate works before the plaintiff's work, if they had never been before united in one combination or in one work, or on one page