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penalty of forfeiture by omitting an insignificant part. The stat ute would thus fail to reach the very persons who are the most guilty; viz., those who knowingly and wilfully commit piracy. As this construction would operate to annul the law in many, doubtless a majority, of cases, and especially in the case of those against whom its penal provisions were particularly aimed, it is reasonable to suppose that it does not give effect to the intention of the legislature. On the other hand, it is clear that the law will often be harsh, and perhaps unjust, in its operation, if every book which contains a material quantity of piratical matter may be seized by the injured person.

If one or the other of these extreme constructions must be adopted, there are reasons for choosing the latter. It would doubtless give greater effect to the intention of the legislature; and would be supported by the principle, recognized in cases of piracy, that whoever wrongfully mixes the matter of another with his own must suffer the consequences. But the courts are not bound to go to either extreme in construing the statute. They may hold that the appropriation of an entire work is not necessary to subject the wrong-doer to the penalty of forfeiture; and, on the other hand, that such penalty is not necessarily incurred by taking a part, though such part may be enough to amount to piracy, for which an action of damages will lie. In this view of the law, the forfeiture would attach when a work consists chiefly or largely of pirated matter, or when it contains a large or valuable part of a book entitled to protection. But, when the pirated matter forms a small part in quantity and value of the book complained of, the injury may be redressed by an action for damages.

In the examination of this question, the fact has not been overlooked that, in that part of the statute1 which requires two copies of every copyrighted book to be deposited in the library of Congress, the word copy must be taken to mean a transcript of the entire work. But the intention of Congress in making this provision is obvious; and that intention would clearly be defeated by holding that a substantial, and not a verbatim, copy was meant.

1 s. 4956.

MAPS, CHARTS, MUSICAL COMPOSITIONS, AND

WORKS OF ART.

Penalties and Forfeitures. Section 4965 of the Revised Statutes provides that any person who, without the written consent of the owner of the copyright, signed in presence of two witnesses, shall engrave, etch, work, copy, print, publish, or import, either in whole or in part, or by varying the main design with intent to evade the law, or knowing it to be so printed, published, or imported, shall sell or expose to sale any copy of

copyrighted map, chart, musical composition, print, cut, engraving, photograph, chromo, painting, drawing, statue, statuary, or model or design intended to be perfected as a work of the fine arts, shall forfeit to the owner of the copyright all the plates on which the same shall be copied, and every sheet thereof either copied or printed. The offender is further made liable to pay a penalty of one dollar for every sheet found in his possession, either printing, printed, copied, published, imported, or exposed for sale. In the case of a painting, statue, or statuary, the penalty, besides forfeiture of plates and copies, is ten dollars for every copy found in the possession of the offender," or by him sold or exposed for sale." The owner of the copyright is entitled to one-half of the prescribed penalties, and the United States to the other half.

In the case of all the articles above named, excepting paintings, statues, and statuary, the wrong-doer is not liable to pay the penalty for any copies not found in his possession.1

1 Backus v. Gould, 7 How. 798. fendants were liable to the penalties In Dwight v. Appleton, which was an for all the copies which were in their action in the United States Circuit possession when the action was brought, Court for unlawfully importing and including all of such copies which may publishing a book, the report says that have been afterward sold, the ruling "the jury were authorized [by Mr. was doubtless correct. But if the Justice Thompson] to give fifty cents court intended to construe the law to for every sheet contained in the vol- the effect that the defendants were umes found at any time, within the liable to pay the penalties for the period stated in the declaration, to have copies which had been imported and been in the possession of the defend- sold before the action was brought, ants. The law applies to all the copies and which therefore were not found in which the defendants had imported or their possession, the decision was sold, or held for sale, contrary to the against the plain reading of the statute, rights of the plaintiffs." 1 N. Y. Leg. and is in opposition to the law as since Obs. 198. expounded by the Supreme Court of If by this was meant that the de- the United States in Backus v. Gould.

Persons Liable.

- Knowledge of Piracy. Besides the printer, publisher, importer, seller, and the person exposing to sale, any person who shall unlawfully "engrave, etch, work," or "copy" any article mentioned in section 4965 is made liable to the forfeitures and penalties. Guilty knowledge must be shown on the part of the wrong-doer who sells or exposes to sale, but not in the case of the others.1

Substantial Copy subject to Penalties and Forfeitures.—The penalties and forfeitures are incurred not only when the whole of the copyrighted article has been unlawfully taken, but when it has been pirated, "either in whole or in part, or by varying the main design with intent to evade the law." When the thing complained of is not an exact reprint, the question is, whether it is a substantial copy of that entitled to protection.2 When the piratical copy appears to be an imitation or a colorable copy, it would seem to be necessary to show that the main design of the original had been varied "with intent to evade the law." But I do not understand that the words just quoted apply, or were intended to apply, to a copy which is an exact reproduction of the whole or a part of the original.

Although the statute does not expressly prohibit copying on a larger or a smaller scale than that of the original, there can be little doubt that an enlarged or a diminished copy made without authority would subject the offender to the penalties and forfeitures.3

Copying by Photography and other Processes Unlawful. - The statute prohibits unlawful copying, and the word copy is comprehensive enough in its meaning to embrace all modes and processes of multiplying copies. Thus, when the statute of 1831 was passed, photography had not been discovered; but although a photograph was not, within the meaning of section 1 of that act, a "print, cut, or engraving" entitled to protection, an unlicensed photographic copy of a print, cut, or

1 Millett v. Snowden, 1 West. Law Jour. 240. See ante, pp. 478, 470, 401404.

2 Reed v. Carusi, Tan. Dec. 72; Rogers v. Jewett, 12 Monthly Law Reporter, 339. Br. Roworth v. Wilkes,

1 Camp. 94; West v. Francis, 5 Barn. & Ald. 737; Moore v. Clarke, 9 Mees. & W. 692.

8 See English cases on this point, ante, p. 481, notes 2, 3.

Wood v. Abbott, 5 Blatchf. 325.

engraving was within the prohibition of section 7.1 The same construction has been given to the English statutes.2

Is Copying of Engraving or Photograph Piracy of Painting ? In England, piracy of an engraving of a painting has been held to be an infringement of the copyright in the painting. The soundness of this doctrine has been questioned in this work.3 There can be little doubt that this rule will not apply in construing the clause of section 4965 of the American statute which prescribes a penalty of ten dollars for every unlawful copy of a painting, statue, or statuary. The proper construction of this provision would seem to be, that a person is not made liable to the penalty, unless he copies directly from the painting or statue, or from a piratical copy. When he unlawfully reproduces a copyrighted engraving, photograph, or chromo of a painting, he is subject to the penalties and forfeitures expressly prescribed for such cases.

Gratuitous Circulation of Copies. Under the statute of 1831, in an action for the penalties or forfeitures against the printer or importer, it was necessary to show, in the case of prints, cuts, engravings, maps, charts, and musical compositions, that the copies had been printed or imported" for sale." the existing statute, the words for sale are omitted.5

But, in

Action for Damages. Section 4965 does not give an action

1 Rossiter v. Hall, 5 Blatchf. 302. Benedict, J., said: "The argument of the defendant is, that the exclusive privilege given by the first section of the act does not include the photographing the copyrighted engraving because that is not a 'printing' or a ' reprinting,' and that the general words of the seventh section cannot be held to forbid in others what has not been exclusively reserved to the author by the words of the first section; and, further, that photographing could not have been within the intent of the lawmakers, as the art of photography had not been discovered when the act was passed. In support of such a construction, the decision of Judge Shipman, in the case of Wood v. Abbott, 5 Blatchf. 325, is cited. I cannot agree to the construction of the act which is contended for. In my opinion, sections

one and seven should be read together; and, so taken, the words used disclose a clear intent to protect a copyrighted work from such a mode of duplication as is practised by the defendant. Section seven provides that any person who shall engrave, etch, or work, sell or copy, the engraving, shall be an offender. The word copy is a general term added to the more specific terms before used, for the very purpose of covering methods of reproduction not included in the words engrave, etch, or work, and, if it covers any thing, should cover the photographic method, which, more nearly than any other, produces a perfect copy."

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for damages for the piracy of any article therein mentioned; and section 4964 provides such remedy only in the case of books. Any article, however, named in section 4965, which may be considered as a book within the general meaning of the law, is within the scope of section 4964. Thus, maps, charts, and musical compositions have been expressly held to be books. Moreover, the common-law remedy by action for damages is available in any case where such remedy is not expressly provided by the statute.1

GENERAL PROVISIONS.

Penalty for False Printing of Copyright Notice. Section 4963 provides that every person who shall insert or impress the notice of copyright," or words of the same import, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article, for which he has not ob tained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States." Under the corresponding provision of the act of 1831,2 it was held that the penalty could not be recovered in the name of more than one person; but that the statute might admit of a more liberal construction if the penalty had been given to the person aggrieved, instead of a common informer.3

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Unlicensed Publication of Manuscripts. Section 4967 gives to the owner an action for damages against "every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein." This provision has been fully considered in another chapter.1

Limitation of Actions.

Section 4968 provides that "no action shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen." It is no defence, in an action for unlawful printing, that more than two years have passed since the plates were engraved or stereo

1 See ante, p. 473.

2 s. 11; 4 U. S. St. at L. 438.

8 Ferrett v. Atwill, 1 Blatchf. 151. 4 See ante, p. 124.

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