the form of foot-notes, the statement of facts and abstract of arguments of counsel, represent the results of the labor and the authorship of the reporter; but, in reporting the opinion delivered by the court, he gives a mere copy of what he is not the author. In this he can have no exclusive rights, although he may have written a verbatim report of it from the lips of the judges. So, when the head-notes are prepared by the judge, as they sometimes are, the reporter has no rightful claim to copyright in them; for, in such case, he is the mere copyist of what another is the author. Nor is the reporter entitled to any copyright when he is employed on the condition that the exclusive property in the results of his labor shall belong to the State; for then he has voluntarily parted with his rights.2 But, in such case, he does not lose his title to reports prepared by him after the expiration of his term of office, and when he is no longer employed or paid by the State.3 Abridgments, Digests, and Selections of Cases. -There is no principle to prevent a person from acquiring a valid copyright for a bona fide abridgment, digest, or synopsis of any judicial decision, whether it be obtained from oral delivery in court or from any published report; provided, of course, that the decision is common property, or, if not, that the reporter has authority so to use it. Indeed the head-notes, in which the exclusive property of the reporter has been recognized, are but a digest of the decision. So, a selection and arrangement of cases relating to a particular branch or subject of the law may have a material value as a compilation due to the labor, judgment, and learning of the compiler. Exclusive property in such a work may be acquired on the principle that a compilation consisting wholly of old materials is recognized as a proper subject of copyright. Opinions of the Court. I have seen no sound, clear exposition of the law governing copyright in judicial decisions. In the This would have been wholly useless and nugatory, unless Mr. Wheaton's marginal notes and abstracts of arguments could have been the subject of a copyright, for that was all the work, which could be the subject of copyright; so that if Mr. Peters had violated that right, Mr. Wheaton was entitled to redress." Gray v. Russell, 1 Story, 21. 1 Chase v. Sanborn, 6 U. S. Pat. Off. Gaz. 932. 2 Little v. Gould, 2 Blatchf. 165, 362. 3 Little v. Hall, 18 How. 165. See this case considered in Chap. VII. English cases, wherein protection has been given to legal reports, the courts have not expressly declared whether the copyright claimed by or through the reporter vested only in the matter prepared by him, or extended also to the opinion itself. In the United States, it has been held that neither the reporter nor the judge can acquire copyright in the judgment pronounced by the court; and the opinion seems to have been entertained that such production is not a proper subject of copyright.2 In Wheaton v. Peters, the Supreme Court of the United States was "unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right."3 It has not been expressly declared in any modern case that copyright will vest in a judicial decision; but the law on this point may be easily determined. May be Copyrighted by Government. - Property in judicial decisions is governed by the same general principles that apply to all literary compositions. They are a proper subject of copyright; and when the provisions of the law are complied with, as in the case of other productions, they will be entitled to the same protection accorded to any copyrighted work. Where such protection has been denied, the decision of the court could not rightly have been otherwise; for the reason that the copyright had not been properly secured, or the plaintiff's title was defective. It is obvious that the copyright in an opinion written or delivered by a judge cannot be acquired by a reporter or the first publisher on the ground of authorship, for the reason that he is not the author. It is not less clear that the judge who pronounces the decision is not entitled to the copyright therein, because he is not the owner of the property. Hence, neither in the judge nor in the reporter will a valid copyright vest, except by a derivative title. The copyright must be secured by the owner of the property; and all difficulty disappears when it is determined who is the owner. Elsewhere it is shown that any person who employs another to prepare a work may, by virtue of the contract of 1 See the English cases cited, ante, other American cases cited, ante, p. 159, p. 159, note 3. note 3. 2 Wheaton v. Peters, 8 Pet. 591, 654; Little v. Gould, 2 Blatchf. 165, 362. See 38 Pet. 668. See remarks of Mr. Justice Story, ante, p. 159, note 3. employment, become the owner of the literary property therein.1 On this principle, the people who employ and pay judges are the rightful owners of the literary property in the opinions written by them. Hence, the United States government may secure to itself the copyright in the decisions pronounced in the federal courts, and each State may do the same with the opinions of its own judges. And the government may confer upon any person the right of securing, or the copyright after it has been secured. Of course the State, as in the case of an individual, may lose its exclusive right of property, and it usually does, by permitting the work to be published without being copyrighted; or, it may declare by its constitution or by statute that such decisions shall be public property.2 But, if the government chooses to retain its property, and takes the steps required in the case of every literary composition for its protection, a valid copyright may be secured. The doctrine that the State may have an exclusive property in the decisions of its judges, although the courts appear to have lost sight of it in more recent times, was advanced in England more than two centuries ago. In 1666, the House of Lords, affirming the judgment of the Lord Chancellor who had granted an injunction against members of the Stationers' Company, held that Atkins had acquired from the king the exclusive right of printing Rolle's Abridgment.3 So, in 1672, the same tribunal reversed the decision of the Common Pleas, that the property in the third part of Croke's reports was in Roper, who had derived his title from the executors of the reporter, 1 See Chap. IV. 2 The constitution of New York adopted in 1846, art. vi. s. 22, declared that "the legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient. And all laws and judicial decisions shall be free for publication by any person." The language of this section is somewhat varied in the constitution as amended in 1867. See art. vi. s. 23. In Little v. Gould, 2 Blatchf. 165, 362, it was held that the provision in the constitution of 1846 did not affect the exclusive property claimed by the State, in the parts of the reports of the Court of Appeals consisting of the notes and references prepared by the State reporter who had been appointed pursuant to the statute of 1850, c. 245. Section two of this act provided that "the copyright of any notes or references made by the State reporter to any of said reports shall be vested in the Secretary of State for the benefit of the people of this State." See also Chase v. Sanborn, 6 U. S. Pat. Off. Gaz. 932. 3 Atkin's Case, cited 4 Burr. 2315, reported Carter, 89; Bac. Abr. Prerog. F. 5. and held that "the copy belonged to the king," by whom the defendant Streater had been licensed to print. Whether the king's rights were affirmed on the principle of property or prerogative does not appear from the reports of the cases. One of the grounds on which Atkin's case was argued was that of property in the king, who paid the judges. Lord Mansfield emphatically maintained that the judgment of the Lords rested solely on this ground, and that it could be defended on no other.2 1 Roper v. Streater, cited 4 Burr. 2316; s. c. Skin. 234; 1 Mod. 257; Bac. Abr. Prerog. F. 5. 2 Millar v. Taylor, 4 Burr. 2401 et seq. See ante, p. 63, note 5. The doctrine of the king's exclusive right to publish the acts of Parliament was recognized in Baskett v. University of Cambridge, decided in 1758, by the King's Bench, of which Lord Mansfield was Chief Justice. 1 W. Bl. 105; s. c. 2 Burr. 661. Of this judgment, Lord Mansfield, in Millar v. Taylor, 4 Burr. 2404, said: "We had no idea of any prerogative in the crown over the press; or of any power to restrain it by exclusive privileges, or of any power to control the subject-matter on which a man might write or the manner in which he might treat it. We rested upon property from the king's right of original publication. Acts of Parliament are the works of the legislature; and the publication of them has always belonged to the king as the executive part and as the head and sovereign." Others have contended that the right claimed by the king was founded on prerogative, and not property. See ante, p. 63. For a long time, it was considered unlawful to publish reports of judicial matters without a license. In the preface to Douglas's Reports, vol. i. p. ix, the reporter says: "Soon after the Restoration, an act of Parliament having prohibited the printing of law-books without the license of the Lord Chancellor, the two Chief Justices and the Chief Baron, it became the practice to prefix such a license to all reports published after that period in which it was usual for the rest of the judges to concur, and to add to the imprimatur a testimonial of the great judgment and learning of the author. The act was renewed from time to time, but finally expired in the reign of King William. But the same form of license and testimonial continued in use till not many years ago; when, as one had become unnecessary, and the other was only a general commendation of the writer, and no voucher for the merit of the work, the judges, I believe, came to a resolution not to grant them any longer; and accordingly the more recent reports have appeared without them." Sir James Burrow apologized for publishing his reports without license and the usual imprimatur, and said: "I know it is a contempt of this court to publish their proceedings; it is against a standing order of the House of Lords to publish proceedings there upon appeals or writs of error. They ought to be published under authoritative care and inspection; but since the Year Books, no judicial proceedings have been so published, either by the House of Lords, or by any court in Westminster Hall, except State trials." 1 Burr. preface, p. vii. STATUTES AND PUBLIC DOCUMENTS. Statutes are within the same principle that governs judicial decisions. They are the property of the government, which employs and pays those who make them. The government, if it chooses, may have them copyrighted; and only the government, or some person deriving title from it, has this right. But any person may acquire copyright in notes and citations appended to a statute. So, copyright was held to vest in certain forms which had been prepared by following the directions given by the statute.3 The same general rule applies to public documents, official correspondence of the government, reports made by government officers, &c. Copyright may be secured for such productions, if the proper steps are taken by the rightful owner. The property in public documents usually belongs to the government by virtue of the fact that it employs and pays the persons who write them. But, when the ownership is claimed by the writer, there may be considerations of public policy to prevent him from publishing without the consent of the government. Statutes and public documents are usually published by the government without being copyrighted. Hence they become common property; and, as far as copyright is concerned, may be reprinted by any person. PUBLICATIONS USED FOR ADVERTISING. Whether a composition of this kind is a proper subject of copyright will depend on its character, and not the purpose for which it is used. An advertisement which has no other use or value than to make known the place and kind of business of the advertiser is not within the scope of the copyright law. But information, and the results of learning, valuable to others than the advertiser, may be, and often are, contained in an advertising publication. That valid copyright will vest in such a publication does not admit of reasonable doubt. In advertising the works which he wishes to sell, a bookseller may 3 Alexander v. Mackenzie, 9 Sc. Sess. Cas. 2d ser. 748. See post, p. 204. Marsh, 2 Story, 1 See Baskett v. University of Cambridge, referred to in note 2, p. 163; also, Baskett v. Cunningham, 1 W. Bl. 370; s. c. 2 Eden, 137. 2 Banks v. McDivitt, 13 Blatchf. 163. 100. 4 See Folsom v. |