settled that piracy may be committed by taking a few pages from a copyrighted book; to hold that the substance of the whole may be lawfully appropriated, if published in the form of an abridgment, is as absurd as it is inconsistent and unjust. An unauthorized abridgment of a work entitled to protection must, therefore, be regarded as piratical.1 TRANSLATIONS. Statutory Provision for Reserving Right of Translation and Dramatization. Section 4952 of the Revised Statutes of the United States provides that "authors may reserve the right to dramatize or translate their own works." The manner of doing this is not prescribed or indicated. A notice to that effect, printed on the title-page or that following, would doubtless be enough. When the right of translation has thus been reserved by the author, it will be a clear violation of the statute for any person without authority to translate the book; and, when the right of dramatization is reserved, it is equally clear that all 1 It has been shown that Justices Story and Clifford regarded an unauthorized abridgment as piratical, when its effect is to damage the author of the original; and that the views expressed by Mr. Justice McLean in Story's Executors v. Holcombe are in entire accord with the conclusion reached in the text. Mr. Chancellor Kent, criticising the doctrine recognized obiter in Dodsley v. Kinnersley, said: This latitudinary right of abridgment is liable to abuse and to trench upon the copyright of the author." 2 Com. 382, note e. After questioning the soundness of the views expressed by Lord Hardwicke in Gyles v. Wilcox, Lord Campbell says: "I confess I do not understand why an abridgment tending to injure the reputation and to lessen the profits of the author should not be an invasion of his property." 6 Lives of the Chancellors (10 vols, London, 5th ed.), 202, 203, note e. In Tinsley v. Lacy, Vice-Chancel lor Wood, afterward Lord Hatherley, said: "The authorities by which fair abridgments have been sanctioned have no application. The court has gone far enough in that direction; and it is difficult to acquiesce in the reason sometimes given, that the compiler of an abridgment is a benefactor to mankind by assisting in the diffusion of knowledge." 1 Hem. & M. 754. "In the United States and in England, any man may make an abridgment of the work of another; that is, any man has a right to cut the ears of my corn, provided he leaves the stalks uncut; to drink my wine, provided he leaves me the casks." Lieber, 2 Political Ethics (Woolsey's ed., Phila., 1875), 122. Unsuccessful attempts have been made to extend the current fallacious theory concerning abridgments to a diminutive photograph of a painting, and to reprints reduced in size of maps and illustrations. Gambart v. Ball, 14 C. B. N. s. 306; Bradbury v. Hotten, Law Rep. 8 Exch. 1; Farmer v. Calvert Lithographing, Engraving, & MapPublishing Co., 5 Am. L. T. R. 168. unauthorized persons are barred from dramatizing the work, either for publication in print or for representation on the stage. But because the statute gives to every author the privi lege of reserving the right to dramatize and to translate his work, it does not follow that such right does not exist in the absence of express reservation. If the right is in harmony with the general purpose of the statute, and is properly within the grant made by Congress, it cannot be destroyed without language which is express or whose meaning is clearly implied to that effect. The provision in question simply directs how the right of translation and dramatization may be put beyond doubt and dispute. It neither creates nor destroys that right. The existence and limitations of the right are to be determined by a judicial construction of the entire statute in accordance with established principles. Nor are the author's rights in his work, in the absence of an express reservation, affected by the question whether he has or has not himself dramatized or translated it. If he has made a dramatization or translation, and secured a copyright for it, this copyright will protect the production for which it was granted; but it cannot prevent any person from making a like use of the original. Whether the unlicensed translation or dramatization of the original is piratical must be determined. by the nature and extent of the property in the original. Unlicensed Translation in Absence of Reservation. The inquiry now arises, whether, in the absence of any special reservation, the unauthorized translation of a book is a violation of the copyright in it. This question has been adjudicated in but the one case of Stowe v. Thomas. It was raised, but not decided, more than a century and a half ago, in Burnett v. Chetwood. In several other cases may be found dicta on the general subject of piracy in the case of translations. Let us see what light is thrown on the subject by the decisions. English Authorities. The first case relating to translations arose in 1720, when Lord-Chancellor Macclesfield granted an injunction against an English translation of Thomas Burnett's Archæologia Philosophica, a work which had been published in Latin, and copyrighted by the author. The unauthorized publication of the book in English was enjoined, on the ground that - it "contained strange notions, intended by the author to be concealed from the vulgar, in the Latin Language; in which language it could not do much harm." The decision, therefore, did not turn on the question of the general rights of the translator; but the Lord Chancellor remarked obiter, that "a translation might not be the same with the reprinting the original, on account that the translator has bestowed his care and pains upon it, and so not within the prohibition of the act."1 In Wyatt v. Barnard, decided in 1814, it appeared that the complainant had copyrighted a periodical containing, besides selections and original articles, translations made expressly for him from foreign works not protected by copyright in England. Such selections and translations had been copied by the defendant, without authority, in a rival periodical. This was a clear case of piracy. In granting the injunction, Lord Eldon properly held that," with respect to the translations, if original, whether made by the plaintiff or given to him, they could not be distinguished from other works."2 This language clearly refers to the kind of translations before the court, and has no reference to those of copyrighted works which are not mentioned in the report of the case. This decision, therefore, though often cited, has no bearing on the question under consideration. One aspect of the subject of piracy by translation was considered in Murray v. Bogue. The plaintiff complained that his Handbook for Travellers in Switzerland had been infringed by a guidebook issued by the defendant, under the title of Switzerland and Savoy. The latter publication had been made up from various sources, and in part was an abridged translation of Bædeker's German work, which appears not to have been copyrighted in England. It was claimed, however, on this point, that Bædeker's book was a translation of Murray's, and that its retranslation into English by Bogue was a violation of Murray's copyright. The law applicable in such a case was correctly laid down by Vice-Chancellor Kindersley, who said: "If Bædeker's were a translation of Murray's into German, and then the defendant had retranslated Bædeker's 1 Burnett v. Chetwood, 2 Meriv. 441. 2 3 Ves. & B. 77. 1 into English, even if he did not know that Bædeker's was taken from Murray, I could not allow the plaintiff's book to be thus indirectly pirated." But it was found that Bædeker's was substantially an original work, and not a reproduction in German of Murray's; and therefore its translation into English could not infringe the copyright in Murray's book. Excepting Wood v. Chart,2 which was governed by the provisions of the International Copyright Statute, the above are the only reported English cases in which the question relating to piracy in the case of translations has been raised. Two of these had sole reference to the translations of productions which were not protected by copyright in England; while the first was decided on grounds of public morals. They have therefore no direct bearing on the question whether a protected work is infringed by the publication of an unlicensed translation. In Millar v. Taylor, decided in 1769, and Prince Albert v. Strange, in 1849, are found dicta relating to translations. But the issue was in no wise before the court; and the remarks were made by the judges merely for purposes of illustration.3 1 1 Drew. 367. 2 Law Rep. 10 Eq. 193. 3 In Millar v. Taylor, Lord Mansfield maintained that the King's claim to the translation of the Bible was based not on prerogative, but on principles of property, and said: "If any man should turn the Psalms, or the writings of Solomon or Job into verse, the King could not stop the printing or sale of such a work: it is the author's work." 4 Burr. 2405. That is good law; for such works are common property, and may be translated by any person. In the same case, Mr. Justice Willes said: "Certainly bona fide imitations, translations, and abridgments are different; and, in respect of the property, may be considered as new works." Ibid. 2310. And Mr. Justice Aston remarked that after publication "the right of the copy still remains in the author; and that no more passes to the public, from the free-will and consent of the author, than an unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. He may improve upon it, imitate it, translate it, oppose its sentiments; but he buys no right to publish the identical work." Ibid. 2348. To the same effect is the dictum of Vice-Chancellor Bruce in Prince Albert v. Strange. He was of opinion that the author's common-law rights in a manuscript work might be invaded by the publication of a translation, abridgment, or summary of the original; and remarked that a published work "may be liable to be translated, abridged, analyzed, exhibited in morsels, complemented, and otherwise treated in a manner that" a manuscript production is not. 2 De G. & Sm. 693. The language of the three judges last quoted is too sweeping, and cannot be reconciled with the restrictions that have been drawn around piracy in more recent cases. American Authorities. There are but two American decisions relating expressly to the subject under consideration. In deciding Emerson v. Davies, in 1834, Mr. Justice Story said: "A man has a right to a copyright in a translation upon which he has bestowed his time and labor. To be sure, another man has an equal right to translate the original work, and to publish his translation; but then it must be his own translation by his own skill and labor, and not the mere use and publication of the translation already made by another." 1 This is a mere obiter dictum; for the subject of translations was entirely foreign to the issue before the court. As applied to originals not protected by copyright, the doctrine is sound. There is nothing to indicate that Judge Story intended the language to have a more extensive meaning. There is ground for believing that he referred to the translations of works that were common property.2 Unlicensed Translation Held to be Lawful. - In Stowe v. Thomas, decided in 1853, the Circuit Court of the United States held directly and unequivocally that an unauthorized translation of a copyrighted work is no infringement of the original, nor of a prior translation made and copyrighted by the author of the original in the same language as the translation complained of.3 The book in controversy was Uncle Tom's Cabin. Besides copyrighting the English original, Mrs. Stowe had caused it to be translated into German, and had secured a copyright for the translation. Afterward, the defendant made a translation into German, when Mrs. Stowe promptly complained of piracy. Mr. Justice Grier decided that she was not entitled to the protection sought, and used this language: "By the publication of her book, the creations of the genius and imagination of the author have become as much public property as those of Homer or Cervantes. Uncle Tom and Topsy are as much publici juris as Don Quixote and Sancho Panza. All her conceptions and inventions may be used and abused by imitators, playwrights, and poetasters. 1 3 Story, 780. 2 In support of his statement, Judge Story cited Wyatt v. Barnard, which goes only to the extent of recognizing copyright in translations of works not protected by statute. 32 Wall. Jr. 547; s. c. 2 Am. Law Reg. 210. |