the proof-reading is governed by uniform rules, or that both were corrected by the same proof-reader. So, in Pike v. Nicholas, it appeared that both plaintiff and defendant had made the same quotation from Prichard, in which that author had cited a passage from Livy, relating to the color of the hair of the Gauls, and that both had pointed out that the correct reading of the Latin text was rutilate coma, "reddened heir," and not, as given by Prichard, rutila coma, "red hair." This was cited as evidence of copying. But the Lord Justices of appeal gave much weight to the consideration that the defendant was a fair Latin scholar, and might naturally have made the same criticism as did the plaintiff on Prichard's reading. And this view was strengthened by the fact that the form rutilate was to be found in a German and in a French translation of the passage in question.1 So, also, it will be in the defendant's favor if the erroneous passage alleged to have been copied in his book is free from some of the inaccuracies which are found in the same passage in the plaintiff's publication.2 Still, it is to be remembered that the errors may have been corrected in copying. Circumstances such as the above are not necessarily conclusive; but they will be entitled to due consideration in weighing the probabilities. Presumption of Copying Created by Likeness must be Overcome by Defendant. When the publication complained of contains resemblances striking enough to warrant the inference of piracy, it is for the defendant to show that the likeness is not the result of copying from the complainant's work He may establish the fact that his own work was prepared without any recourse whatever to that of the plaintiff; or, admitting that he had seen or used the latter, he may show that the parts complained of in his own work were taken by him from a source other than the publication alleged to have been pirated. It 1 Law Rep. 5 Ch. 251. 2 In M'Neill v. Williams, 11 Jur. 344, it appeared that seven errors in the plaintiff's mathematical tables were also found in those of the defendant. The latter declared that this was accidental, and that the plaintiff's book contained seventy errors not to be found in his own. It does not appear what importance the court attached to this circumstance; but the injunction was refused. 3 See ante, p. 400. will not be enough for the defendant simply to show that the passages in question are to be found in other books than the plaintiff's, and that such books were accessible to him, or even were used by him in the preparation of his own. This evidence may lessen the probabilities that there was unlawful copying. But it must be proved that the defendant actually got the matter in dispute from the common source without copying from the protected work. It is obvious that there would be little protection for compilations and other works containing selections, quotations, citations, &c., gathered from common sources, if the charge of piracy could be successfully met by showing that the defendant might have obtained the matter complained of from the original authorities. The pivotal question is not what he might have done, but what he has done. So, when coincidence of errors is brought forward as evidence of copying, it will doubtless be in the defendant's favor to show that the same inaccuracies are found in the work of another author. But it by no means follows from this that the erroneous passages in the defendant's work were not copied from that of the plaintiff. When the defendant is charged with having copied quotations from the plaintiff's work, instead of going to the original authorities, it will be a circumstance of much weight if the quoted matter in the later compilation is more extensive than in the earlier one.1 Intention to pirate on the part of the person charged with wrong will have much weight in determining the question of copying. And so it will often be important for the defendant to produce his manuscript, or satisfactorily account for its nonproduction. He may also be called upon to explain such matters relating to the preparation of his work as may throw light on the question of unlawful copying. In a recent English 1 "On the other hand, the defendant had quoted an author taken from Prichard, Calpurnius Flaccus, who was not quoted by the plaintiff, and had added to his quotation a passage from Tertullian, which was not inapt to the subject. These circumstances showed clearly that the defendant went to the original source, namely, Prichard, and that he got those quotations from 3 Hotten v. Arthur, 1 Hem. & M. 609; Jarrold v. Houlston, 3 Kay & J. 708; Spiers v. Brown, 6 W. R. 352. See this point considered in Chap. XI. case, where the defendant denied that he had copied from the plaintiff's book quotations from Retzius and from Pouchét, his evidence was not credited, because he could not say where he had seen the original works of those authors, which were so rare that copies were not in the British Museum. The defendant was further charged with having copied an argument based on the physical characteristics of ten thousand persons which he claimed to have observed at public meetings; but it was a significant fact against him that he could not give the time or place of such meetings.1 1 Pike v. Nicholas, Law Rep. 5 Ch. 251. See also Kelly v. Wyman, 17 W. R. 399; s. c. 20 L. T. N. s. 300. CHAPTER IX. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS, CONSIDERED WITH REFERENCE TO PIRACY. General Principles. In considering the question of piracy in the case of these productions, certain fundamental principles, which apply equally to all of them, should be borne in mind. Any person, or any number of persons, may abridge, translate, or dramatize any publication not protected by copyright. The original being common property, no legal rights are secured to its author; therefore, none are violated by the uses above mentioned. Hence, there may be numerous abridgments, translations, or dramatizations of the same original, and copyright will vest in each. This copyright will prevent any person without license from copying the abridgment, translation, or dramatization, but not from using the original for the same purpose. Whether one abridgment, translation, or dramatization infringes another is determined by the fact, whether the alleged wrong-doer has produced his own from the original by independent labor, or has copied that of another. So also a person with the consent of the author may secure a copyright for an abridgment, translation, or dramatization of a work protected by copyright. Alterations, additions, improvements, &c., made without authority, however extensive or valuable they may be, confer no right to use a copyrighted work.2 A person may acquire copyright in new matter added to a work of which he is not the author, or in changes, improvements, &c., made in such work; but he must show that the original is common property, or, if protected by copyright, that he has authority so to use it. Hence, it is no defence of piracy that the 2 See ante, pp. 405–407. 1 See ante, p. 158. unauthorized abridgment, translation, or dramatization of a copyrighted work presents the original in a new and improved, a more useful, or a less expensive form. It is a fundamental principle of the law of copyright that to take a material part, verbatim or in substance, of a protected work, except under the recognized privilege of fair use, is piracy. This principle is universally recognized. It was affirmed by Lord Langdale, when he said, "Whilst all are entitled to resort to common sources of information, none are entitled to save themselves trouble and expense by availing themselves, for their own profit, of other men's works still subject to copyright and entitled to protection ;" and by Mr. Justice Story, when he said that if "the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto.”2 This principle is not less applicable to the productions now under consideration than it is to any other kind. The question of piracy, then, in the case of an abridgment, translation, or dramatization of a work protected by copyright, is to be determined by two inquiries: 1. Whether the whole or a material part of the original has been substantially reproduced; 2. Whether the original has been used with the consent of the owner.3 ABRIDGMENTS. The judicial history of copyright is fertile in examples showing how false doctrines become firmly rooted in jurisprudence by the practice of blindly following precedents without examining the grounds on which they are based. No subject presents a more striking illustration of the evils of this custom than that of abridgments. In 1847, Mr. Justice McLean, after emphatically declaring that the doctrine held by the courts in relation to abridgments was contrary to right and established principles, said that he was "bound by precedent; "4 and as lately as 1869 Mr. Justice Clifford declared that the prevailing doctrine on this subject "has been too long 1 Lewis v. Fullarton, 2 Beav. 8. 2 Folsom ". Marsh, 2 Story, 115. 8 Dramatizations for performance are further governed by the question whether the work dramatized is a dramatic composition. 4 Story's Executors v. Holcombe, 4 McLean, 308, 309. |