doctrines be applied in determining questions of literary property? The law for the punishment of blasphemy is penal, and should therefore, it may be urged, be construed with less stringency than in civil cases. It may also be argued, that, because the law refuses to punish the authors of certain works injurious to religion, it does not follow that it will protect their property in such works; that not to treat the publication of the objectionable writing as an offence is one thing, but to apply active remedies for its protection is another and a different matter. Whatever plausibility or force there may be in this argument, the distinction is not a valid one to defeat the copyright in a publication which is not blasphemous. Copyright confers prima facie title to property in a book. That property is entitled to protection, and the courts are bound to give the usual remedies, until a defect in the title, or a fault in the property, is shown. If the work appears on its face, or is proved to be blasphemous, libellous, or seditious, its publication is unlawful, because blasphemy, libel, and sedition are offences against the law, and the author is thereby deprived of his remedies. If it be immoral, the right of protection is forfeited, because immorality is regarded in every civilized community as an offence against society and harmful to the public welfare.

But the temperate promulgation of sincere beliefs, hostile to the Christian religion, is not in this country a violation of any law, and cannot justly be regarded as injurious to morality or the public welfare. To defeat the right of property on the ground. of the obnoxious character of the book, it must appear that some positive law is violated, or that the publication is dangerous to the peace of the community, or harmful to public morals. There are those who believe that the dissemination of doctrines hostile to religion is an act of immorality, and dangerous to the welfare of society. So, also, not a few regard the exercise of a large freedom in political discussion as damaging to the government and baneful to the commonwealth. But in this country the expression of political opinions, however hostile to the government, comes within the cognizance of the law only when the public peace and order are thereby disturbed or threatened, or the government exposed to peril. A like rule is proper in the case of religious inquiry. Religion and morality,

irreligion and immorality, are not synonymous words. Disbelief in the Bible or the religious doctrines which it teaches does not in itself amount to immorality; and the proper expression of that disbelief does not justly interfere with the public order or undermine public morals. Until this tendency can be shown in a literary composition, its religious character is not a proper subject of judicial inquiry. Unless the object be to ascertain whether the promulgation of views hostile to religion amounts to blasphemy, immorality, or a breach of the public peace, the law can rightly take no more cognizance of differences of opinion in religion than in politics or philosophy or political economy, or any other department of thought.1

In the absence, therefore, of any judicial or statutory restrictions on this subject, there appears to be no good reason why valid copyright will not rest in a publication in which are denied any or all of the doctrines of the Bible; provided the motives and the manner of the author be such as not to warrant the finding of a case of blasphemy, immorality, or breach of the peace.

FALSE PRETENCES AS TO AUTHORSHIP.

The principle that a work subversive of good order or morality is not a proper subject of copyright has been ex

1 "If a court of equity," says Mr. Justice Story, "under color of its general authority, is to enter upon all the moral, theological, metaphysical and political inquiries, which in past times have given rise to so many controversies, and in the future may well be supposed to provoke many heated discussions, and if it is to decide dogmatically upon the character and bearing of such discussions, and the rights of authors, growing out of them; it is obvious that an absolute power is conferred over the subject of literary property, which may sap the very foundations on which it rests, and retard, if not entirely suppress, the means of arriving at physical as well as meta

physical truths. Thus, for example, a judge who should happen to believe, that the immateriality of the soul, as well as its immortality, was a doctrine clearly revealed in the Scriptures (a point upon which very learned and pious minds have been greatly divided), would deem any work ante-Christian, which should profess to deny that point, and would refuse an injunction to protect it. So, a judge who should be a Trinitarian might most conscientiously decide against granting an injunction in favor of an author, enforc ing Unitarian views; when another judge of opposite opinions might not hesitate to grant it." 2 Eq. Jur. § 938.

tended in England to protect the public against publications issued under false and fraudulent representations, intended injuriously to deceive the buyer. In an action for piracy of a book entitled Evening Devotions, from the German of C. C. Sturm, it was shown that the work was not a translation from Sturm, but that it had been wilfully and falsely represented to be so, with a view of gaining profits by the unwarranted use of the name of that well-known writer. The falsehood expressed in the title was reiterated at length in the preface. The court characterized this proceeding on the part of the plaintiff as an attempt to obtain money under false pretences, and held that there could be no valid copyright in a work whose "sale produces such consequences." Chief Justice Tindal, who pronounced the decision, drew a distinction between this case and the common one of publications issued under an assumed name, with innocent intent by the author and without harm to the buyer. In the latter case, there is no serious design on the part of the author to deceive the buyer, or to acquire unlawful profits by false representation; and it is a matter of indifference to the public whether the representation be real or fictitious. The copyright is not affected by such innocent representations. But, when the public is induced to buy a book in the false belief that it is the work of a well-known writer, who in fact has had no part in its production, the transaction is a fraud which will defeat the copyright.1

1 Wright v. Tallis, 1 C. B. 893. fiction or romance, and even works of The Chief Justice said: "The first science and instruction; for, in all observation, therefore, that arises, is, these instances the misrepresentation that the present case is perfectly dis- is innocent and harmless. There is tinguishable from those which have not found in any one of those cases, been referred to at the bar, of books any serious design on the part of the of amusement or instruction having author to deceive the purchaser, or to been published as translations, whilst make gain and profit from him by the they have been, in fact, original works; false representation. The purchaser, for or having been published under an any thing that appears to the contrary, assumed, instead of a true name. Such would have purchased at the same was the instance given of The Castle price, if he had known that the name of Otranto [by Walpole], professing to of the author was an assumed, and not be translated from the Italian; and a genuine name; or had known that such the case of innumerable works the work was original, and not transpublished under assumed names -- lated. And, indeed, in most of the voyages, travels, biography, works of cases that can be put, the statement is

Equity has restrained the publication of a book falsely represented to be the production of a well-known author.1

ORIGINALITY.

The rule has been laid down and universally recognized, that originality is an essential attribute of copyright in a literary composition. The words original and originality, as used in the law of copyright, have a most comprehensive meaning. Very few, if any, intellectual productions are original in the strict sense that the author is the creator of all that is expressed in his composition. Knowingly or unknowingly, one writer borrows from another; and in the most original works of modern genius are found thoughts and sentiments as old as language itself.2 The object of the law of copyright is to pro

not calculated in its nature to deceive any one, but is seen, upon the very first glance, to be plainly and manifestly fictitious. In those cases, therefore, it was perfectly indifferent to the public, whether the representation was true or not; and, in all probability, the book would have obtained an equal sale, whether it was a translation or an original, whether the name of the author was assumed or genuine.

But, in the case before us, no one of these observations will apply. The facts stated in the plea import a serious design on the part of the plaintiff to impose on the credulity of each purchaser, by fixing upon the name of an author who once had a real existence, and who possessed a large share of weight and estimation in the opinion of the public. The object of the plaintiff is, not merely to conceal the name of the genuine author, and to publish opinions to the world under an innocent disguise; but to deceive the public, by inducing them to believe, that the work is the original work of the author whom he names, when he himself knows it not to be so, to obtain from the purchaser a greater price than he would otherwise obtain. The transaction, therefore, ranges itself under the head of crimen falsi. The publisher seeks to obtain money under

false pretences; and as, not only the original act of publishing the work, but the sale of copies to each individual purchaser, falls within the reach of the same objection, we think the plaintiff cannot be considered as having a valid and subsisting copyright in the work, the sale of which produces such consequences, or that he is capable of maintaining an action in respect of its infringement.

"The cases in which a copyright has been held not to subsist where the work is subversive of good order, morality, or religion, do not, indeed, bear directly on the case before us; but they have this analogy with the present inquiry, that they prove that the rule which denies the existence of copyright in those cases is a rule established for the benefit and protection of the public. And we think the best protection that the law can afford to the public against such a fraud as that laid open by this plea, is, to make the practice of it unprofitable to its author." Ibid. 906.

1 Byron v. Johnston, 2 Meriv. 29; Seeley v. Fisher, 11 Sim. 581; Harte v. DeWitt, 1 Cent. Law Jour. 360. See also Archbold v. Sweet, 5 Car. & P. 219, treated in Chap. VII.

2"In truth, in literature, in science and in art," said Mr. Justice Story,

mote learning and useful knowledge by protecting the fruits of intellectual activity. Almost every product of independent literary labor is a proper subject of copyright; and, to be entitled to protection, the author has simply to show something material and valuable produced by himself, and not copied from the protected matter of another.1

Work need not be wholly Original. In many cases the author has created the substance as well as the form of the