of the materials, is the same in principle as copying original matter.1 The ques When Arrangement, but not Materials, is Copied. tion, whether a person is barred from copying the plan and arrangement of a compilation, though he takes no materials from it, involves two inquiries: 1. Whether, in adopting the mode of combination, he uses different materials from those in the earlier work; 2. Whether he uses the same selections, but obtains them from the original authorities. In the former case, it is difficult to see how any piracy can be committed. In the mere plan or arrangement of a compilation, independently of the materials themselves, there can be no copyright to the extent that the compiler may rightfully prevent another from using the same arrangement for materials not found in the earlier publication, or for a different purpose. In such case, the later compilation will be substantially new, and different from the earlier one.2 But the case is different when the same materials are found in the same order in both books. There is then a substantial identity between the two; and, if the subsequent compiler has 1 "But the respondent contends that, even if it be true that matters of fact, citations, and authorities have been borrowed to a considerable extent, he had a right to take them, as the use he made of them was substantially new, and different from that made by the complainant in the two prior annotated editions of the work, because they were used by him in illustrations of new and original propositions. . . . The doctrine of new and different use in the law of copyright applies more particularly to the old materials, and not to the materials of a work like that of the last annotated edition of the complainant, where the materials collected are much abridged, and sometimes paraphrased and newly arranged, and combined with the text of the original work. Beyond all doubt, he might take the old materials as found in the sources from which the matters of fact, citations, and authorities of the complainant were drawn, and use them as he pleased in illustration of new and original propositions, or for any other purpose not substantially the same as that to which they are applied in the annotated editions edited by the complainant: but he could not borrow the materials as therein collected and furnished, nor could he rightfully use the plan and arrangement, or the mode by which they are combined with the text, beyond the extent falling within the definition of fair use; which rule is only applicable to the materials, and not to the plan, arrangement, and mode of operation." Clifford, J., Lawrence v. Dana, 2 Am. L. T. R. N. s. 424. See also Grace v. Newman, Law Rep. 19 Eq. 623. 2 Murray v. Bogue, 1 Drew. 353; Spiers v. Brown, 6 W. R. 352; Pike v. Nicholas, Law Rep. 5 Ch. 251; Mack v. Petter, Law Rep. 14 Eq. 431; Lawrence v. Cupples, 9 U. S. Pat. Off. Gaz. 254; Banks v. McDivitt, 13 Blatchf. 163. servilely copied the arrangement and combination from the earlier publication, the question arises, whether he can escape the penalty of piracy by showing that he has obtained the materials from the common sources. The chief value of a compilation is in the choice and arrangement of its contents. To make apt selections, and arrange effectively, to collect valuable illustrations and citations for purposes of annotation, and combine them properly with another's text, often require great research, judgment, scholarship, and literary knowledge. When such a compilation is made, any one, with little labor and no literary knowledge or skill, may be able to duplicate it; and the injury done to the original compiler is not less when the selections are copied from the original sources.1 The subsequent compiler may not be prevented from arranging different materials on the same plan, or from making a new arrangement of the same common selections. But, in adopting both the arrangement and the materials of an existing compilation, though the materials are obtained from the original sources, he avails himself of the labor, judgment, and learning of his predecessor, to publish a rival work identical with that of the latter. I am not aware that a case of this kind has been decided, or that the law on this point has been judicially expounded. But the courts have frequently declared, and the principle is well grounded, that no one shall appropriate the substantial fruits of the industry and learning of another, to the injury of the latter; and, when this is done by a subsequent 1 This is well illustrated by Lockhart's annotated edition of Scott's Minstrelsy of the Scottish Border, which was brought into controversy in the recent Scotch case of Black v. Murray. Of the two hundred notes added by the editor, it appeared that all but fifteen were quotations from common sources. The ballads also were common property. "To a considerable extent," said Lord Kinloch, "the notes borrowed (to use a euphemism) from Messrs. Black's edition, consist of quotations from various authors, employed by Mr. Lockhart to illustrate ballads in the Minstrelsy. It was per haps thought that to repeat quotations from well-known authors was not piracy. If so, I think a great mistake was committed. In the adaptation of the quotation to the ballad which it illustrates, the literary research which discovered it, the critical skill which applied it, — there was, I think, an act of authorship performed, of which no one was entitled to take the benefit for his own publication, and thereby to save the labor, the learning, and the expenditure necessary even for this part of the annotation." 9 Sc. Sess. Cas. 3d ser. 355. compiler in the manner above described, he should, in my judg ment, be held to have committed piracy.1 manner. But there is nothing in the law of copyright to prevent any person who has obtained common materials from the original sources from using them in substantially the same manner, and for the same purpose, as they have been previously used; provided the arrangement is his own, and is not servilely copied from the work of another. Two authors, writing on the same subject, citing the same authorities, and taking the same illustrations and quotations from common sources, will naturally use such common materials for like purposes and in a similar As far as citations of authorities, quotations, &c., are concerned, there may be a striking resemblance, amounting in some instances to substantial identity. This, however, does not amount to piracy, unless it appears that there has been servile copying from the preceding work." In Pike v. Nicholas, a substantial identity was shown between the two works in controversy, both as to common materials used and their arrangement and mode of treatment. The Vice-Chancellor was satisfied that the later work was the result of piratical copying, and not of independent labor. But the court of appeal, finding that the subsequent writer had obtained his materials from the original sources, and that the resemblance in the use of the materials of the two works was natural under the circumstances, held that it was not a case of piracy.3 Hence, in determining the question of piracy in cases of this kind, much allowance should be made for the natural resemblance between the two productions. In the case of two compilations on the same subject, the author of the later one should not be 1 In Story's Executors v. Holcombe, Mr. Justice McLean said: "So far as citations are made in the Commentaries, Mr. Holcombe had a right to go to the original works and copy from them; but he could not avail himself of the labor of Judge Story, by copying the extracts as compiled by him. This is a well-established principle. Nor could he copy the plan or arrangement of the subjects in the Commentaries. It is said there can be no copy right in a plan, distinct from the work itself, any more than there can be a copyright in an idea. This is admitted; but the words in which an idea is expressed is a subject of property, and so is the classification." 4 McLean, 316. 2 Murray v. Bogue, 1 Drew. 353; Spiers v. Brown, W. R. 352; Webb v. Powers, 2 Woodb. & M. 497; Banks v. McDivitt, 13 Blatchf. 163. 3 Law Rep. 5 Ch. 251. held too strictly accountable for similarity in arrangement and combination between his and the earlier work. So a person should not be held too rigidly to the penalty of piracy for having followed a preceding plan and arrangement, which have little or no material originality or merit. But, in general, a subsequent compiler should not be allowed servilely to copy, to a material extent and to the injury of his predecessor, the arrangement and combination which give value to a preexisting work. ASCERTAINING THE FACT OF COPYING. Before the question of piracy can be determined, it will be necessary to ascertain what use the defendant has made of the plaintiff's work. In the case of literal copying, this can usually be done with little difficulty and with certainty. But, when the matter alleged to have been taken is more or less disguised in the later publication by change of language, form, arrangement, &c., the determination of the question of copying will often be attended with great difficulties. When the defendant frankly admits the extent to which the plaintiff's work has been used, and his evidence is accepted as conclusive, the fact will thereby be established, and the law determined accordingly. More frequently, however, copying is denied, or only a fair use of the protected work is admitted to have been made; but this evidence is often inconsistent with the likeness between the two publications, and will be insufficient to rebut the charge of copying. A comparison of the two works will then be made with the aid of such direct or circumstantial evidence as may be available; and not unfrequently the question will have to be determined solely or chiefly by the internal evidence afforded by such comparison. Common Errors Test of Copying. The occurrence of the same errors in the two publications in controversy affords one of the surest tests of copying, especially in the case of compilations where a close resemblance is a natural consequence of the use of common materials. In some instances, it may be made apparent that both writers have naturally made the same mistakes; but, in general, this result is so improbable that the presence in both works of common inaccuracies creates a presumption of copying so well grounded that it can be overcome only by the strongest evidence. Hence, in the absence of conclusive proof to the contrary, the courts have uniformly accepted the evidence afforded by such errors, when sufficiently numerous or peculiar, as adequate to sustain the charge of copying. And Lord Eldon laid down the rule, that, when parts of a book have been proved by this test to have been pirated, other identical passages in which common blunders do not appear must be presumed to have been copied.2 - Things against Presumption of Copying. Due weight should be given to those circumstances which indicate that certain common peculiarities may be fairly attributed to other agencies than copying. Thus, punctuation, spelling, the use of capitals, and kindred matters, are often regulated, not by the author, but by the proof-reader. Hence, peculiarities of this kind may appear in a publication without the author's agency. Especially are the probabilities in favor of copying afforded by such resemblances greatly lessened when it appears, as in Lawrence v. Dana, that both works were printed in the same office, where 1 Longman v. Winchester, 16 Ves. 269; Mawman v. Tegg, 2 Russ. 385; Murray v. Bogue, 1 Drew. 353; Spiers v. Brown, 31 L. T. R. 16; s. c. 6 W. R. 352; Kelly v. Morris, Law Rep. 1 Eq. 697, 702; Pike v. Nicholas, Law Rep. 5 Ch. 251; Cox v. Land & Water Journal Co., Law Rep. 9 Eq. 324; Lawrence v. Dana, 2 Am. L. T. R. N. s. 402. "From the identity of the inaccuracies, it is impossible to deny that the one was copied from the other verbatim et literatim." Lord Eldon, Longman v. Winchester, supra, 272. Some instances are stated in the bill, and others were stated at the bar, to show that Mr. Bogue has the plaintiff's errors, which is the ordinary and familiar mode of trying the fact whether the defendant has used the plaintiff's book. Now, the use of showing the same errors in both is, that where the defendant says he has got his information not from the plaintiff, but from other sources, if the evidence is unsatisfactory on the question whether the defendant did use the plaintiff's work or not, to show the same errors in the subsequent work that are contained in the original is a strong argument to show copying." Kindersley, V. C., Murray v. Bogue, 1 Drew. 366. 2 "It is necessary to ascertain how much of the one book has been copied from the other; and many cases have established, that you cannot have better evidence of such copying than the circumstance which occurs in several of the passages here complained of, — namely, the fact of blunders in the original book being transferred into the book which is accused of piracy. And I may add, that, when a considerable number of passages are proved to have been copied, by the copying of the blunders in them, other passages which are the same with passages in the original book must be presumed, prima facie, to be likewise copied, though no blunders occur in them." Mawman v. Tegg, 2 Russ. 393-394. 8 2 Am. L. T. R. N. s. 402. |