Where an author had been engaged to write an article for a periodical, and before the article was done, and before the publication or delivery of any part of it, the periodical was discontinued, it was held that the publishers were not entitled to claim the completion of the article for publication in a separate form, but were bound to pay a fair sum for the part that had been written.1 Where an editor Title of Magazine Partnership Property. and publishers have formed a partnership for the publication of a magazine of which they are joint owners, the editor, having taken steps to dissolve the partnership with the view of establishing another periodical, is not at liberty to advertise the discontinuance of the first magazine. The title of the latter and the right to publish it are partnership property, and may be sold for the benefit of the partners. But the editor may advertise its discontinuance by him, or as far as he is concerned.2 Name of Editor not Part of Title. -In Crookes v. Petter,3 it appeared that an agreement had been made that the plaintiff, for a sum to be determined by the number of copies sold, should be the editor of a periodical owned by the defendants, and to be published by them under a title to be agreed on. After it had been published for about a year with the title or heading, "The Photographic News, a Weekly Record of the Progress of Photography, Edited by W. Crookes, F. C. S.," and with a printed notice that all editorial communications should be addressed to the editor, the plaintiff sought to have the defendants enjoined from interfering with his editorial management, and from publishing the periodical without his name as editor appearing in the title, or in some other place, or without a printed notice that editorial communications should be addressed to him. The court refused to grant an injunction on the grounds that the title of the periodical had not been changed by the omission of the editor's name, which was not a in the case of articles published in magazines and other perjodicals are considered, ante, p. 259. 2 Bradbury v. Dickens, 27 Beav. 53. See also Constable v. Brewster, 3 Sc. Sess. Cas. 214; Hogg v. Kirby, 8 1 Planché v. Colburn, 5 Car. & P. Ves. 215. 58, on ap. 8 Bing. 14. 3 3 L. T. N. s. 225. part of the title, and that there was no stipulation, express or implied, in the agreement that the defendants should not do what the plaintiff sought to enjoin them from doing. Joint Owners of Copyright.-Joint owners of the copyright may make any agreement between themselves with reference to the printing, publication, and sale of a book; and such contract will be binding on them, although it may not be valid as far as other persons are concerned.1 In Carter v. Bailey, it was held by the Supreme Court of Maine that one owner in common of a copyright, who at his own expense has published and sold the book copyrighted, is not liable, in the absence of an agreement inter sese, to account to his co-owner.2 There Literary Contracts Governed by Statute of Frauds. appears to be no reason why the general principles of the Statute of Frauds should not apply to literary as well as to other contracts.3 In Sweet v. Lee, it appeared that the agreement for the publication of a dictionary of legal practice was contained in a memorandum which was signed with the initials 1 Gould v. Banks, 8 Wend. (N. Y.) 562. "There is no principle or authority," said Nelson, J., "which will inhibit such a contract between parties, because they may be partners in the subject-matter of it. They may bind themselves by a private agreement concerning the partnership business; but, so far as third persons may be interested, it would be inoperative as to them." Ibid. 568. 2 64 Me. 458. "In the absence of any contract modifying their relations," said Virgin, J., "they are simply owners in common, as the plaintiff has alleged, each owning a distinct but undivided part, which, or any part of which, alone he can sell, as in the case of personal chattels. The statute confers upon all the owners full power, without exacting any obligation in return, to print, publish, and sell. It gives no superior right to either,the only restriction being as to time. All others within that period, having no license from them or some one of them, are excluded. Each can exercise his own right alone, without using or 3 See Strahan v. Graham, 16 L. T. N. s. 87, on ap. 17 Id. 457. 4 3 Man. & Gr. 452. of the publisher and of the author; and was to the effect that the latter should receive £80 a year for five years, and £60 a year for the rest of his life, if he should live longer than five years. This was held to be void under the Statute of Frauds; 1 because, being a memorandum of an agreement not to be performed within a year, no consideration was expressed on the face of it, and it was without any signature other than the initials of the parties. The plaintiff, therefore, was not entitled to damages claimed to have been sustained by the failure of the defendant to perform his agreement to prepare a new edition. Nor, although the contract was void, could the plaintiff, having paid for several years the sums mentioned in the memorandum, recover the money so paid on the ground of failure of consideration. An agreement by a printer to find the paper and print a book has been held not to be a contract for the sale of goods within the Statute of Frauds.2 The printer is entitled under a verbal agreement of this kind to recover for work done and materials supplied.3 1 29 Car. II. c. 3, s. 4. 2 29 Car. II. c. 3, s. 17, as extended by 9 Geo. IV. c. 14, s. 7. 3 Clay v. Yates, 1 Hurl. & N. 73. CHAPTER VIII. PIRACY. In the Piracy Defined, and Distinguished from Plagiarism. law of copyright, piracy is the use of literary property in violation of the legal rights of the owner. The meaning of infringement is the same. Neither word is properly used where no legal rights are invaded. Hence, strictly speaking, it is not piracy to take without authority either a part or the whole of what another has written, if neither a statute nor the common law is thereby violated. Such act may be plagiarism, which is a moral but not necessarily a legal wrong; but, to constitute piracy, there must be an act against the law. Plagiarism further differs from piracy in that the plagiarist falsely offers as his own what he has taken from the writings of another. The pirate may or may not do this. Hence, there may be an unauthorized appropriation of literary property which is neither piracy nor plagiarism, as the republication in the United States of the work of a foreign author. This is not piracy, because no law is violated; and, without misrepresentation as to authorship, it is not plagiarism. So, also, the same act may be at once plagiarism and piracy. The word piracy is applied to the unlawful taking of any kind of intellectual property, whether literary, dramatic, or art. Nor is its use restricted to productions published and protected by statute. The violation of common-law rights by publicly reading a literary composition, representing a manuscript drama, making or exhibiting copies of a work of art, may properly be called piracy. Fundamental Principles by which Piracy is Determined. - - The legislature has not defined piracy, or indicated how far a person may lawfully go in appropriating the results of another's labors. The English statute prohibits any one without au thority from printing, publishing, importing, or selling "any book in which there shall be subsisting copyright." The law of the United States prohibits the printing, publication, sale, or importing of "any copy" of a book entitled to protection.2 The language of the earlier statutes in both countries was substantially the same. "Book" in the English, and "copy" in the American, law are here used for the same purpose, and with the same meaning; but both acts are silent as to what that purpose and meaning are. A literal reprint of an entire work is obviously a copy. But is the republication of a part of a book within the statutory prohibition? Is the meaning of the word copy, as here used, limited to verbatim transcripts, or does it extend to paraphrases and servile imitations? Is the unlicensed translation, dramatization, or abridgment of a copyrighted work piratical? Did the legislature intend to protect the substance of a literary composition, or merely its verbal form? These and kindred questions have been left to the courts. They are to be determined by adjudicated principles. The declared object of the copyright laws is to encourage learning, and to secure authors in the enjoyment of the fruits of their labors. As a means to this end, the legislature has guaranteed protection to literary property, and has declared the unlicensed use of that property to be piracy. We must first understand what that is for which protection is given, before we can determine what is an unlawful use of it. It has been shown elsewhere that literary property is not limited to the precise form of words, the identical language, in which a composition is expressed, but that it is in the intellectual creation of which language is but a means of expression and communication. The same production may be expressed and communicated in various languages, without affecting its identity. The means of communication are changed; but the thing communicated remains the same. So, in the same language, the words may be varied; but the substantial identity of the composition is preserved. It is this intellectual produc 1 5 & 6 Vict. c. 45, s. 15. 2 U. S. Rev. St. s. 4964. 8 See ante, p. 97. |