a former publication does not necessarily prevent
its being considered an original work; the author
may nevertheless, by selection and modification, ar-
rangement and combination, produce a new work.90
But, to entitle an author to a copyright in the
selection, plan, arrangement, and combination of
his materials, the work in these respects must be
new and original.91 The new copyright will extend
to, and protect, only what is new and original; it
will not secure or extend copyright in the old ma-

Fed. 1014 [rev on other grounds 238
Fed. 151, 151 CCA 2271; Woodman v.
Lydiard-Peterson Co., 192 Fed.
[aff 204 Fed. 921, 123 CCA 243 (reh
67
den 205 Fed. 900, 126 CCA 434)];
West Pub. Co. v. Edward Thompson
Co., 169 Fed.

V.

grounds 176 Fed. 833, 100 CCA 303]; 833 [mod on other Egbert v. Greenberg, 100 Fed. 447, 448 ("official form chart"); American Trotting Register Assoc. v. Gocher, 70 Fed. 237; Stover v. Lathrop, 33 Fed. 348; Hanson v. Jaccard Jewelry Co., 32 Fed. 202; Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39; Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87; Bullinger v. Mackey, 4 F. Cas No. 2,127, 15 Blatchf. 550; Emerson v. Davies, 8 F. Cas. No. 4,436, 3 Story 768; Greene v. Bishop, 10 F. Cas. No. 5,763, 1 Cliff. 186; Gray v. Russell, 10 F. Cas. No. 5,728, 1 Story 11; Lawrence v. Dana, 15 F. Cas. No. 8,736, 4 Cliff. 1; Story v. Holcombe, 23 F. Cas. No. 13,497, 4 McLean 306; Banker v. Caldwell, 3 Minn. 94; Leslie v. Young, [1894] A. C. 335; Morris v. Wright, L. R. 5 Ch. 279; Exchange Tel. Co., Ltd. v. Gregory, [1896] 1 Q B. 147; Lamb Evans, [1893] 1 Ch. 218; Grace v. Newman, L. R. 19 Eq. 623, 7 ERC 86; Hogg v. Scott, L. R. 18 Eq. 444; Mack v. Petter, L. R. 14 Eq. 431; Scott v. Stamford, L. R. 3 Eq. 718; Kelly v. Morris, L. R. 1 Eq. 697, 7 ERC 102; Lewis v. Fullerton, 2 Beav. 6, 17 EngCh 6, 48 Reprint 1080; Sweet v. Benning, 16 C. B. 459, 81 ECL 459, 139 Reprint 838; Trusler v. Murray [cit Cary v. Longman, 1 East 358, 362, 102 Reprint 138, 7 ERC 78]; Cary v. Longman, supra; Norton v. Nicholls, 1 E. & E. 761, 102 ECL 761, 120 Reprint 1095; Harrison v. Taylor, 4 H. & N. 815, 157 Reprint 1064; Rundell v. Murray, Jac. 311, 4 EngCh 311, 37 Reprint 868; Reg. v. Firmin, 15 J. P. 740 [cit Harrison v. Taylor, 3 H. & N. 301, 304, 157 Reprint 485]; Jarrold v. Houlston, 3 Kay & J. 708, 69 Reprint 1294; Mulloney v. Stevens, 10 L. T. Rep. N. S. 190; Mawman v. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380; Ager y. Collingridge, 2 T. L. R. 291; Wilkins v. Aikin, 17 Ves. Jr. 422, 34 Reprint 163; Longman v. Winchester, 16 Ves. Jr. 269, 33 Reprint 987; Matthewson v. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103; Hogg v. Kirby, 8 Ves. Jr. 215, 32 Reprint 336; Cary v. Faden, 5 Ves. Jr. 24, 31 Reprint 453; Kelly v. Hooper, 1 Y. & Coll. 197, 20 EngCh 197, 62 Reprint 852; Beauchemin v. Cabieux, 10 Que. Q. B.

255.

"Copyright has been extended so that it now includes books that old guild of authors would have disdained; catalogues, tables, mathematical statistics, designs, books, directories, and other works guideof similar character. would seem, evincing, in its make-up, Nothing, it that there has been underneath it, in some substantial way, the mind of a creator or originator, is now excluded." National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 297, 56 CCA 198, 60 LRA 805. [a] Arrangements and of answers, however questions themselves, and on subjects however simple in common, may be the subject of copyright. Jarrold v. Houlston, 3 Kay & J. 708, 69 Reprint 1294. [b]

A work partly compiled and

92

[$ 95 terials used in the new work.9 become codified by express enactment in the copyThese rules have right statute, and compilations are expressly named as the subject of copyright."

93

95

94

Rules applied. The following have been held proper subjects of copyright: itineraries, road and guide books; abridged information of train service in connection with circular tours of a particular locality;96 a list of railway stations;97 a book of chronology; 98 dictionaries; a topographical diction

mere

99

partly original may be the subject [1894] A. C. 335.
of copyright.
Beav. 6, 17 EngCh 6, 48 Reprint 1080.
Lewis v. Fullarton, 2 [a] Reason
90.
Co., 192 Fed. 67 [aff 204 Fed. 921, 123
Meccano v. Wagner, 234 Fed.
912; Woodman v. Lydiard-Peterson
CCA 243 (reh den 205 Fed. 900, 126
ward Thompson Co., 176 Fed. 833,
CCA 434)]; West Pub. Co. v. Ed-
lock v. Pearson, Ltd., [1915] 2 Ch.
100 CCA 303; Boucicault v. Fox, 3 F.
Cas. No. 1,691, 5 Blatchf. 87; Black-
376.

from

10 Que. Q. B. 255.
ant's copyright on a manual for use
in connection with a mechanical toy
uncopyrighted work for use in con-
is not invalid because of a previous
uncopyrighted work did not contain
nection with such toys, where the
all of the matter in the copyrighted
book, Meccano v. Wagner, 234 Fed.
912.

common

materials, without novelty or value for rule.-(1) copy or reprint of "A compilation; for in such case there in their arrangement or combination, is not entitled to copyright as a Copyright p is nothing to represent authorship lies in new matter or new arrangeon the part of the compiler." Drone 156. (2) Authorship righted works.-(1) ment. comprising a choice of articles taken [a] Compilation Barfield v. Nicholson, 2 Sim. & St. 1, 1 EngCh 1, 57 Reprint 245. uncopyA compilation ing-(1) A mere collection of re[b] Collection of receipts for cookmenclature, may be the subject of dell v. Murray, Jac. 311, 4 EngCh from books on which the copyright said, be the subject of copyright, as has expired, together with its noceipts for cooking cannot, it has been copyright. it requires no mental labor. Beauchemin v. Cadieux, 311, 37 Reprint 868. Run(2) Complain-Kerr, in his treatise on Injunctions, (2) But Mr. says that the authorities do not sup(3) And it is clearly not the law. port this dictum. 375; Kerr Inj. p 361. 912; Hoffman v. Le Traunik, 209 Fed. Thompson Co., 169 Fed. 833 [mod 92. Meccano v. Wagner, 234 Fed. West Pub. Co. V. Edward on other grounds 176 Fed. 833, 100 CCA 303]. See also infra § 272. 93. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 6) (which provides: "That abridgement, adaptations, compilations ments, dramatizations, translations, arrangepublic domain, or other versions of works in the works when produced with the conof copyrighted sent of the proprietor of the copyright in such works, or works repubgarded lished with new matter, shall be recopyright under the provisions of works subject to this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to cure original works"). or extend copyright in 94. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5). 95.

a

V.

specification of the conditions, at a
given
[b] A book which consists of a
changing subject matter,
ample, a monthly railway guide, is a
moment, of
constantly
for ex-
new work, and entitled to copyright,
given may not have been altered from
even though some of the particulars
Blacklock & Co., Ltd.
what they were at some earlier date.
Ltd., [1915] 2 Ch. 376.
Pearson,
[c] Test of originality.-"The
and have never been used before; or
question is not, whether the materi-
als which are used are entirely new,
before for the same purpose.
even that they have never been used
of materials have been used before
true question is, whether the same
The
plan, arrangement and combination
other purpose.
for the same purpose or for any
copyright, although he may
If they have not,
then the plaintiff is entitled to a
gathered hints for his plan and ar-
rangement, or parts of his plan and
have
arrangement,
rowed much of his materials from
from
known sources.
existing
and
He may have bor-
others, but if they are combined in
in use before, and a fortiori, if his
a different manner from what was
plan and arrangement are real im-
provements upon the existing modes,
he is entitled to a copy-right in the
book embodying such improvement.
It is true, that he does not thereby
himself the materials which
acquire the right to appropriate to
common to all persons before, so as
to exclude those persons from a fu-
they have no right to use such ma-
ture use of such materials; but then
added, whether they consist in plan,
terials with his improvements super-
binations; for these are strictly his
arrangement or illustrations, or com-

own."

were

Emerson v. Davies, 8 F. Cas.
No. 4,436, 3 Story 768, 778.
91. Hoffman v. Le Traunik, 209
Fed. 375; Mutual Adv. Co. v. Refo, 76
Fed. 961; Bullinger v. Mackey, 4 F.
Cas. No. 2,127, 15 Blatchf. 550; Em-
erson v. Davies, 8 F. Cas. No. 4,436,
3 Story 768; Jollie v. Jaques, 13 F.
Cas. No. 7.437, 1 Blatchf. 618; Story
v. Holcombe, 23 F. Cas. No. 13,497,
4 McLean 306; Leslie V. Young,

as new

or

or

se-.

such

publication in a particular order of [a] Railway guide. The time-tables which are to be found in the publications of the various railway companies is not sufficient to give rise to a claim to copyright. The right may, however, exist in a compilation published in the form of an abstract of coach routes, ferries, and steamers, information as to for the use of a particular locality. Leslie v. Young, [1894] A. C. 335. [1915] 2 Ch. 376. 97. Blacklock V. Longman, 1 East 358, 362, 102 Re98. Trusler v. Murray [cit Cary v. print 138. 7 ERC 78]. 99. Bleistein v. Donaldson Co., 188 U. S. 239, 23 SC 298, 296] (dictum); Barfield v. Nicholson, ed. 460 [rev 104 Fed. 993, 44 2 Sim. & St. 1, 1 EngCh 1, 57 ReRep. 352; Beauchemin v. Cadieux, 10 Que. K. B. 255. 22 Que. Super. print 245; Spiers v. Brown, 6 Wkly. [aff 31 Can. S. C. 370].

Lith. 47 L. CCA

, same title, page and note number

11

16

ary; a book of words for use in telegraphy; a directory; trades directory headings; an East India calendar; a court calendar; biographical notes;? a trade or shipping list;" a book of credit ratings; 10 maps and charts;' catalogues;12 mathematical tables; 13 a book of statistics;14 a compilation of stock exchange quotations;15 abstracts of titles to lands;10 a list of hounds;17 a list of race horses;18 a list of bills of sale, deeds, etc.;19 statutory forms;20 a compilation of the statutes of a state;21 a digest of legal decisions; 22 a spelling book;23 a book of elementary lessons in arithmetic,24 science, 25 or English grammar;26 additions, corrections, or original notes to an old work; 27 and a compilation made from voluminous public documents so arranged as

1. Kelly v. Morris, L. R. 1 Eq. 697, 7 ERC 192; Lewis v. Fullarton, 2 Beav. 6, 17 EngCh 6, 48 Reprint 1080.

C Ager v. Peninsular, etc., Steam Nav. Co., 26 Ch. D. 637.

3. See infra § 130. Infringement of directories see infra § 308.

4. Lamb v. Evans. [18921 3 Ch. 462 [app dism [1893] 1 Ch. 218] (classified trade directory).

5. Matthewson V. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103.

"There is, however, no contention between these parties for a copyright in an East India Calendar; which certainly is not a subject of copyright. But, if a man, from his situation having access to the repositories in the India House, has by considerable expense and labour procured with correctness all the names and appointments on the Indian Establishment, he has a copyright in that individual work; which has cost him considerable expence and labour; and employed him at a loss in other respects; though there can be Copyright in an India Calendar, generally." Matthewson v. Stockdale, 12 Ves. Jr, 270, 276, 33 Reprint 103. 6. Longman V. Winchester, 16 Ves. Jr. 269, 33 Reprint 987.

no

7. James Nisbet & Co., Ltd. V. Golf Agency, 23 T. L. R. 370.

8. Cornish v. Upton, 4 L. T. Rep. N. S. 862.

9. Maclean v. Moody, 20 Dec. Ct. Sess. (2d ser) 1154.

10.

See infra § 129.

11.

See infra §§ 112, 113. 12. See infra 140. 13.

McNeill v. Williams, 11 Jur. 344; Baily v. Taylor, 1 Russ. & M. 73, 5 EngCh 73, 39 Reprint 28; King v. Reed [cit Hogg v. Kirby, 8 Ves. Jr. 215, 223, 32 Reprint_336].

V.

14. National Tel. News Co. Western Union Tel. Co., 119 Fed. 294, 56 CCA 198, 60 LRA 805; Scott v. Stamford, L. R. 3 Eq. 718; Maclean v. Moody, 20 Dec. Ct. Sess. (2d ser) 1154; Walford v. Johnston, 9 Dec. Ct. Sess. (2d ser) 1160.

"There are numerous cases which hold that any compilation or any table of statistics which are the result of the author's industry, and which are gathered at his expense, cannot be bodily used by an infringer." Egbert v. Greenberg, 100 Fed. 447, 450 [quot American Trotting Register Assoc. v. Gocher, 70 Fed. 237]. 15.

See infra § 128. 16. See infra § 131. 17. Cox v. Land, etc., Journal Co., L. R. 9 Eq. 324.

18. Egbert v. Greenberg, 100 Fed. 447, 448 ("official form chart"); American Trotting Register Assoc. v. Gocher, 70 Fed. 237 (list of trotters and pacers with record of 2.30 or better); Weatherby v. International Horse Agency and Exchange, Ltd., [1910] Ch. 297 ("General Stud Book," giving list of brood mares at the stud).

[a] A list of brood mares with their sires or a list of stallions with daughters at the stud is not such a bare list of names as to be incapa

[§ 98] 3. Literary or Artistic Merit. Copyrights being granted under the constitutional grant of power "to promote the progress of science and the useful arts, 34 it has frequently been said or decided that the work copyrighted must be useful,35 and must possess literary or artistic merit,36 in order ble of copyright. Weatherby v. In30. See supra § 91 text and note ternational Horse Agency and Exchange, Ltd., [1910] 2 Ch. 297.

[b] An "official form chart," which consists of a list of race horses, and a compilation of facts and statistics relating to the performances of such horses on the track, is a proper subject of protection by copyright. Egbert v. Greenberg, 100 Fed. 447, 448.

19. Cate v. Devon, etc., Constitutional Newspaper Co., 40 Ch. D. 500; Trade Auxiliary Co. v. Middlesborough, etc., Tradesmen's Protection Assoc., 40 Ch. D. 425.

63.

Abridgment as an infringement see infra § 304.

31. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 6).

32. Banker v. Caldwell, 3 Minn. 94; Blacklock v. Pearson, Ltd., [1915] 2 Ch. 376.

"Indexes to works may be copyrighted. An index to the Constitution of the United States, or the Holy Bible, may be a very valuable contribution to the number of literary productions. Certainly any one who has examined Cruden's Concordance [a] Reason for rule.-"These lists of the Bible would never deny to are in some sense original publica-him the fame of having conferred tions; that is to say, that the author upon the world a work of inestimaof them, or the composer of them ble value, yet it is but an index after as he is called in sect. 18, has be- all." Banker v. Caldwell, 3 Minn. 94. stowed some brainwork upon them, [a] Rule applied."Under the and that they are not a mere collec-present tion of copies of public documents. If they had been such mere collections there might have been some question, but there has been abridgment and mental work and an amount of labor which entitles the author of the work or the composer of it-for I take those two words to same thing-to a copyright." Trade Auxiliary Co. v. Middlesborough, etc., Tradesmen's Protective Assoc., 40 Ch. D 425, 435. 20. See infra § 138.

mean the

an

Lennie v. Pillans, 5 Dec. Ct.
Sess. (2d ser) 416.
24. Emerson v. Davies, 8 F. Cas.
No. 4,436, 3 Story 768.

25.

Jarrold v. Houlston, 3 Kay &
J. 708, 69 Reprint 1294; Jarrold v.
Heywood, 18 Wkly. Rep. 279.

26. Greene v. Bishop, 10 F. Cas.
No. 5,763, 1 Cliff. 186.

V.

27. Gray v. Russell, 10 F. Cas. No. 5,728, 1 Story 11; Lawrence v. Dana, 14 F. Cas. No. 8,136, 4 Cliff. 1; Mason v. Murray, Dick. 536, 21 Reprint 378 (Gray's Poems); Cary v. Longman, 1 East 358, 102 Reprint 138; Moffat v. Gill, 86 L. T. Rep. N. S. 465 [rev 84 L. T. Rep. N. S. 452] (annotated edition of Shakespeare); Black Murray, 9 Macph. S. L. 341; Hotten v. Newsagents' Co., 1 Seton 245; Tonson V. Walker, 3 Swanst. 672, 36 Reprint 1017 [cit Millar v. Taylor, 4 Burr. 2303, 2325, 98 Reprint 201; Cary v. Longman, 1 East 358, 360, 102 Reprint 138] ("Paradise Lost" with Dr. Newton's notes); Hutchins v. Sheard, [1881] W. N. 20.

28. Hanson V. Jaccard Co., 32 Fed. 202.

Jewelry

29. Gyles v. Wilcox, 2 Atk. 141, 26 Reprint 489, 7 ERC 95; Bell v. Walker, 1 Bro. Ch. 451, 28 Reprint 1235; D'Almaine v. Boosey, 4 L. J. Exch. 21; Tonson V. Walker, 3 Swanst. 672, 36 Reprint 1017.

"An abridged edition of a book is protected by a copyright independent of that in the original work, if the substance of the original work is expressed in language substantially different, so that the abrigment is the result of intellectual effort, and not mere copying." 8 Halsbury L. Eng. p 146.

Copyright Act, copyright subsists in every original literary work.' which term includes compilations; so that I suppose the list of names which forms or is contained in the index to Bradshaw is entitled to copyright as much as any other part of the publication." Blacklock v. Pearson, Ltd., [1915] 2 Ch. 376, 381.

Index as an infringement see infra § 306.

33. Banker v. Caldwell, 3 Minn. 94 [quoted supra note 32].

34.

See supra §§ 71, 85.

35. Barnes v. Miner, 182 Fed. 480; and cases infra this section. See also supra § 85. [a] Stage productions.-"Everything put on the stage or intended for the stage is not the subject of a copyright. It may be amusing and entertaining to many, but this fact does not show it to be a production tending to promote the progress of science and useful arts,' and, if it lacks those elements in a substantial degree, it is not within the purview of the statute, which is not supposed to transcend the Constitution of the United States.' Barnes v. Miner, 122 Fed. 480, 493.

[a] Indexed letter file. An indexed letter file is not copyrightable because the contrivance is not book. Amberg File, etc., Co. v. Shea, 78 Fed. 479 [aff 82 Fed. 314, 27 CCA 246].

[b] Mode of ruling a book.-Copyright was claimed in a cricket scoring sheet. Vice-Chancellor Malins held that it was not a fit subject of copyright, partly because it was not new, but also because "to say that a particular mode of ruling a book constituted an object for a copyright is absurd." Page v. Wisden. 20 L. T. Rep. N. S. 435, 436. See also Baker v. Selden, 101 U. S. 99, 25 L. ed. 841 (system of book-keeping).

[c] Railway ticket.-(1) Under the Copyright Act of the Dominion of Canada it has been held that a railway ticket is not a proper subject of

to be a proper subject of copyright;37 and it has
also been said that copyrights are for the encour-
agement of learning and not for the encouragement
of mere industry unconnected with learning and the
sciences.3
38 On the other hand, high authority has
denied the existence of any requirement of literary
or artistic excellence in a work otherwise within
the terms of the statute;3
slight degree of literary or artistic merit, or any
and, in any event, a very
substantial contribution to useful knowledge or to
the arts, is sufficient to support a copyright.40

.39

copyright. In the course of deliv- |
ering the opinion the court inquires:
"What is the literary property to be
protected in this ticket?"
Kingston, etc., R. Co., 17 Ont. 660,
Griffin v.
666. (2) But in the later case of
Church v. Linton, 25 Ont. 131, 134,
Chancellor Boyd says: "I do not go
with the limitation
Griffin v. Kingston, etc., R. Co., su-
suggested in
pra, that the legislation is to be ap-
plied, having regard to literary merit
as an ingredient."

37. Advertisements, price lists, catalogues, etc., as subjects of copyright see infra § 140.

Labels as subject of copyright see infra § 141.

Market quotations and news items see infra 128.

News and newspapers as subjects of copyright see infra § 102. As subject of common-law property see supra § 21.

38. Clayton v. Stone, 5 F. Cas. No. 2,872, 2 Paine 382 [quot Barnes v. Miner, 122 Fed. 480]; Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 665.

was

"Thus we see that the object and principle underlying the legislation and the judicial interpretation of the legislation from Queen Anne's time to the present is to protect, advance, and encourage learning and art; and not, unless it be casually and indirectly, to promote or assist progress in mechanical or industrial appliances or inventions, as to which the law makes beneficial provision otherwise.' Griffin v. Kingston, etc., R. Co., supra. [a] Rule applied.-"The act question was passed in execution of in the power here given, and the object, therefore, the science; and it would certainly be promotion of a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent and durable character. term science cannot, with any proThe priety, be applied to a work of so fluctuating and fugitive form as that of a newspaper or price-current, the subject-matter of which changing, and is of mere temporary is daily Although great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way; it must seek patronage and protection from its utility to the public and not as a work of science. title of the Act of Congress is for The the encouragement of learning, and was not intended for the encouragement of mere industry, unconnected with learning Clayton v. Stone, 5 F. Cas. No. 2,872, and the sciences." 2 Paine 382, 392.

use.

39. Drury v. Ewing, 7 F. Cas. No. 4,095, 1 Bond 540; Kenrick v. Lawrence, 25 Q. B. D. 99; Hollinrake v. Truswell, [1894] 3 Ch. 420; Maple v. Junior Army, etc., Stores, 21 Ch. D. 369; Collis v. Cater, 78 L. T. Rep. N. S. 613; Maclean v. Moody, 20 Dec. Ct. Sess (2d ser) 1154; Church v. Linton, 25 Ont. 131.

The

[$$ 98-99

purely commercial or business character of a composition or a compilation does not oust the right to protection of copyright, if time, labor, and experience have been devoted to its production."1 Defendant's desire to copy has been deemed to show the value and utility of the work copied.42

The

[99] 4. Morality and Legality. On the ground that the law will not lend its aid to protect the author or the owner of an unlawful production,43 no copyright can be acquired in a work which is of work of great literary merit. an indecent or immoral character," or which is statute does not make this a necesof great practical utility, having no sary element of a legal copyright; and it is well known there are works pretension to literary merit, which are yet within, not only the words, but the scope and design of the statute.' Drury v. Ewing, 7 F. Cas. No. 4,095, 1 Bond 540, 548.

40.

Co., 188 U. S. 239, 250, 23 SCt 298,
Bleistein v. Donaldson Lith.
47 L. ed. 460 [rev 104 Fed. 993, 44
CCA 296]; Higgins v. Keuffel, 140
U. S. 428, 11 SCt 731, 35 L. ed. 470;
Baker v. Selden, 101 U. S. 99, 25 L.
ed. 841; Stecher Lith. Co. v. Dunston
Co. v. Street, 204 Fed. 398, 122 CCA
Lith. Co., 233 Fed. 601; Atlas Mfg.
etc., Co. v. Kaufman, 189 Fed. 215,
568, 47 LRANS 1002; National Cloak,
219; Hein v. Harris, 175 Fed. 875
[aff 183 Fed. 107, 105 CCA 399]; Na-
tional Tel. News
Union Tel. Co., 119 Fed. 294, 297, 60
Co.
V. Western
LRA 805; J. L. Mott Iron Works v.
Clow, 82 Fed. 316, 27 CCA 250 [aff
72 Fed. 168]; Henderson v. Tompkins.
60 Fed. 758; Daly v. Webster, 56 Fed.
155, 16 SCt 962, 41 L. ed. 112]; Lamb
483, 4 CCA 10 [app dism 163 U. S.
Co.,
Schwencke, 25 Fed. 466, 23 Blatchf.
Grand Rapids School Furniture
39 Fed. 474; Schumacher
373; Yuengling v. Schile, 12 Fed. 97,
20 Blatchf. 452; Ehret v. Pierce, 10
Palmer, 6 F. Cas. No. 3,552, 6 Blatchf.
Fed. 553, 18 Blatchf. 302; Daly v.
256; Drury v. Ewing, 7 F. Cas. No.
4,095, 1 Bond 540; Folsom v. Marsh,
9 F. Cas. No. 4,901, 2 Story 100;
Lawrence v. Cupples, 15 F. Cas. No.
[1900] A. C. 539, 2 BRC 312; Ken-
8.135; Richardson v. Miller, 20 F.
Cas. No. 11,791; Walter
rick v. Lawrence, 25 Q. B. D. 99;
v. Lane,
Cobbett v. Woodward, L. R. 14 Eq.
407; Church v. Linton, 25 Ont. 131
mard, 39 Que. Super. 97 [aff 39 Que.
[dis from Griffin v. Kingston, etc.,
R. Co., 17 Ont. 660]; Beullac v. Si-
Super. 517].

V.

or

V.

"Courts will not undertake to as-
sume the functions of critics or to
measure carefully the degree of orig-
inality, or literary skill
ing involved."
Co. v. Kaufman, 189 Fed. 215, 219.
National Cloak, etc.,
train-
"The least pretentious picture has
righted."
more originality in it than director-
ies and the like, which may be copy-
Bleistein
Lith. Co., 188 U. S. 239, 350, 23 SCt
Donaldson
298, 47 L. ed. 460 [rev 104 Fed. 993,
44 CCA 296].

V.

composition of no artistic excellence,
[a] "While the public taste con-
tinues to give pecuniary value to a
qualifications of judges would have
the court must continue to recognize
the value so created. Certainly the
to be very different from what they
are if they were to be constituted
censors of the arts."
175 Fed. 875, 877 [aff 183 Fed. 107,
Hein v. Harris,
105 CCA 399].

artistic merit.
L. T. Rep. N. S. 765.
Britain v. Hanks, 86
ject
[d] Topical song.-A topical song
was held to possess sufficient literary
Tompkins, 60 Fed. 758.
merit and originality to be the sub-
of copyright.
Henderson v.

[el Pamphlet descriptive of mode
of advertising.-A pamphlet describ-
ing a new method of using coupons
right.
for the purpose of advertising was
Fed. 961.
held to be a proper subject of copy-
Mutual Adv. Co. v. Refo, 76
Co., 188 U. S. 239, 23 SCt 298, 47 L.
_[f] Circus posters are copyright-
able.-Bleistein
ed. 460 [rev 104 Fed. 993, 44 CCA
V. Donaldson Lith.
296 (aff 98 Fed. 608)].

[g] Pictorial illustrations.-"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustratreme some works of genius would tions, outside of the narrowest and most obvious limits. At the one exbe sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the Goya or spoke. It may be more than doubted, new language in which their author for instance, whether the etchings of when seen for the first time. the paintings of would have been sure of protection Manet other end, copyright would be denied At the to pictures which appealed to a pubpublic, they have a commercial value lic less educated than the judge. Yet if they command the interest of any

it would be bold to say that they have not an aesthetic and educational value and the taste of any public ment, whatever may be our is not to be treated with contempt. It is an ultimate fact for the mo

hopes

V. Don239, 251, [rev 104

V.

Fed. 993, 44 CCA 296]. for 23 SCt 298, 47 L. ed. 460 a change." Bleistein aldson Lith. Co., 188 U. S. 41. Bleistein v. 2961; National Co., 188 U. S. 239, 23 SCt 298, 47 L. Donaldson Lith. ed. 460 [rev 104 Fed. 993, Kaufman, 44 CCA Cloak, 189 etc.. Co. Fed. Tel. News Co. v. Western Union Tel. 215; National etc., Stores, 21 Ch. D. 369; Co., 119 Fed. 29, 56 CCA LRA 805; Maple v. Junior 198, 60 Army, Cater, 78 L. T. Rep. N. S. 613; Church Collis v. v. Linton, 24 Ont. 131 [dist Griffin v. Kingston, etc., R. Co., 17 Ont. 6601. 42. Bleistein Co., 188 U. S. 239, 252, 23 v. Donaldson Lith. 47 L. ed. 460 (where, speaking of cirSCt 298, regard their success is sufficiently shown by cus posters, the court said: "That these pictures had their worth and Church v. Linton, 25 Ont. 131, 135 the desire to reproduce them without to the plaintiff's rights"); utility would seem to be proved by (where the court said: papers must be of some merit "That the and the defendant's willingness to ab

[b] "Nick Carter" detective stor-stract or convey various passages in copyright. ies, although not of the highest class of literature, are proper subjects of advertisements"). them so as to form parts of his rival 204 Fed. 398, 122 CCA 568, 47 LRANS Atlas Mfg. Co. v. Street, 1002.

[c] Toy soldiers made of metal Copyright Act 1814 (54 Geo. III c may have sufficient artistic merit to 56), although ordinary tin soldiers be copyrightable under the Sculpture not copyrightable for lack of

defense

43. Unclean hands as a see infra § 390. 44. Hoffman v. Le Traunik, 209 4601; Broder v. Zeno Mauvais Fed. 375; Barnes v. Miner, 122 Fed. 480; Bleistein v. Donaldson Lith. Co., 98 Fed. 608 [rev on other 188 U. S. 239, 23 SCt 298, 47 L. ed. grounds Co., 88 Fed. 74; Martinetti

[a] A dressmaker's chart was the proper subject of copyright. clearly no objection to the validity "It is of her copyright, that her production does not claim a standing as a For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number

are

49

48

47

ctherwise illegal,45 as a libel,46 a blasphemy, or a mere gambling device or instrumentality.* But the illegality or immorality must be inherent in the work; the mere fact that the work may be used for an unlawful purpose will not deprive it of the right to protection." So the mere introduction of an indecent word in a song will not vitiate the copyright in such a sense as to put the whole musical composition into the public domain; the courts will simply refuse relief against infringement so long as such word is retained in the song, and the illegality may be purged by omitting the word.50 By analogy it has been held that a work put forth with a false ascription of authorship, or otherwise seeking to defraud the public and acquire a circulation

51

V.

by sailing under false colors is not entitled to copyright protection.52 Advertisements which are misleading and contain untrue statements are not copyrightable, and use thereof is not an infringement of copyright.

53

Infringing works. The view has been suggested that the copyright on a work which is an infringement of another work will be protected in so far as the work is original. But this is very doubtful.54

[§ 100] 5. Domestic Manufacture. Where the statute does not so require, it is not necessary that the work copyrighted shall be of domestic manufacture.55 But by the so-called "International Copyright Act" of 1891,56 which for the first time admitted to copyright the works of nonresident alien authors,57 it

to be a history of the amours of a
courtesan, contained in some parts
matter highly indecent, and in oth-
ers matter of a slanderous nature on
persons named in the work. Stock-
dale v. Onwhyn, 5 B. & C. 173, 11
ECL 416, 108 Reprint 65, 2 C. & P.
163, 12 ECL 506. See Glyn v. West-
ern Feature Film Co., [1916] W. N.
Pt II 5 (novel "Three Weeks," deal-
ing with a sensual adulterous in-
trigue, held not entitled to protec-
tion).

guire, 16 F. Cas. No. 9,173, 1 Abb. | ing that the work which professed | public, and the work published by 363; Shook v. Daly, 49 HowPr (N. Y.) 366; Baschet v. London Illustrated Standard Co., [1900] 1 Ch. 73; Stockdale v. Onwhyn, 5 B. & C. 173, 11 ECL 416, 108 Reprint 65, 2 C. & P. 163, 12 ECL 506; Du Bost V. Beresford, 2 Campb. 511; Fores Johnes, 4 Esp. 97; Lawrence v. Smith, Jac. 471, 4 EngCh 471, 37 Reprint 928; Byron v. Dugdale, 1 L. J. Ch. O. S. 239 (where a doubt existed as to the character of the work, and the court dissolved an ex parte injunction, leaving plaintiff to assert his legal rights by action); Southey v. Sherwood, 2 Meriv. 435, 35 Reprint 1006; Walcot v. Walker, 7 Ves. Jr. 1, 32 Reprint 1.

[a] Indecent song.-"I am of the opinion that the word 'hottest,' as used in the chorus of song 'Dora Dean,' has an indelicate and vulgar meaning, and that for that reason the song cannot be protected by copyright. This decision will, however, not prevent the complainants from republishing their song, and, by omitting the objectionable word, thus to secure a valid copyright therefor. In fact, it appeared in evidence that the complainants had since been publishing the song 'Dora Dean' in this form. It results from what has been said that, while the complainants are undoubtedly titled to a copyright for the melody of the song 'Dora Dean,' yet they are not entitled to a copyright of the song with the objectionable word in the composition. The bill will therefore have to be dismissed." Broder v. Zeno Mauvais Music Co., 88 Fed. 74, 79.

en

[b Immoral dramatic production. -"From this it expressly appears that the Constitution did not intend that Congress should pass laws to promote immorality, or anything except science and the useful arts. For this reason an instrument or invention expressly designed to facilitate the commission of crime, as murder, burglary, forgery, or counterfeiting, however ingenious, would not be entitled to be patented. So a real dramatic composition, if grossly indecent, and calculated to corrupt the morals of the people, would not be entitled to a copyright. Such an exhibition neither promotes the progress of science or the useful arts,' but the contrary. The Constitution does not authorize the protection of such productions, and Congress cannot be presumed to have intended to have gone beyond their power give them such protection." Barnes v. Miner, 122 Fed. 480, 490 [quot Martinetti v. Maguire, 16 F. Cas. No. 9,173, 1 Abb. 356, 363]. But see Hageman v. Springer, 110 Fed. 374, 49 CCA 86 [aff 189 U. S. 505, 23 SCt 849. 47 L. ed. 921] (where lithographs advertising the "Black Crook" were protected, and penalties for infringement were recovered).

to

[c] Immoral book.-No action can be maintained to recover damages for loss sustained by the publication of a copy of a book which had been first published by plaintiff, it appear

45. Hoffman V. Le Traunik, 209 Fed. 375; Hime v. Dale [cit Clementi v. Golding, 11 East 244, 103 Reprint 998] (sedition); Southey V. Sherwood, 2 Meriv. 435, 35 Reprint 1006 (sedition).

46.

Baschet v. London Illustrated Standard Co., [1900] 1 Ch. 73; Hime v. Dale, 2 Campb. 27 note; Fores v. Johnes, 4 Esp. 97; Walcot v. Walker, 7 Ves. Jr. 1, 32 Reprint 1.

47. Cowan v. Milbourn, L. R. 2 Exch. 230; Murray v. Benbow, Jac. 474 note, 4 EngCh 474 note, 37 Reprint 929 note; Lawrence v. Smith, Jac. 471, 4 EngCh 471, 37 Reprint 928; Burnett v. Chetwood [cit Southey v. Sherwood, 2 Meriv. 435, 441, 35 Reprint_1006].

[a] Rule applied. An injunction restraining the publication of a pirated edition of Lord Byron's "Cain" was refused, for the reason that the chancellor doubted whether the poem was not "intended to vilify and bring into discredit that portion of Scripture history to which it relates.' Murray v. Benbow, Jac. 474 note, 4 EngCh 474 note, 37 Reprint 929 note, 4 St. Tr. N. S. 1409.

Blasphemy generally see Blasphemy 8 C. J. 1117.

plaintiff was not one of Sturm's writings, but was an original work written in English by a person who had been employed by plaintiff for that purpose, it was held that plaintiff could not have any copyright in the publication, and consequently could not maintain an action against defendants for piracy. Tindal, C. J., in delivering the opinion of the court, said: "The cases in which a copyright has been held not to subsist where the work is subversive of good order, morality, or religion, did not indeed bear directly on the case before us; but they have this analogy with the present inquiry-that they prove that the rule which denies the existence of copyright in those cases, is a rule established for the benefit and protection of the public. And we think the best protection that the law can afford to the public against such a fraud as that laid open by this plea, is, to make the practice of it unprofitable to its author." Wright v. Tallis, 1 C. B. 893, 907, 50 ECL 893, 135 Reprint 794.

52. Davies v. Bowes, 209 Fed. 53 [aff 219 Fed. 178, 134 CCA 552]; Wright v. Tallis, 1 C. B. 893, 50 ECL 893, 135 Reprint 794; Hayward v. Lely, 56 L. T. Rep. N. S. 418; Seeley v. Fisher, 11 Sim. 581, 34 EngCh 581, 59 Reprint 998; Slingsby v. Bradford Patent Truck, etc., Co., [1905] W. N. 122.

[a] Fiction_masquerading as fact in the form of a newspaper report is not copyrightable. Davies v. Bowes, 209 Fed. 53, 56 [aff 219 Fed. 178, 134 CCA 552) (where the court said: "In my judgment the reasoning of Wright v. Tallis, 1 C. B. 893, 50 ECL 893, 135 Reprint 794, is applicable. There a publisher pretended that a copya well-known foreign writer. It was, on the contrary, an original product by a native. It was held, and I think rightly held, that such pretense vitiated the copyright. The pretense here was for the purpose of attracting attention and fending interest to an alleged occurrence which if told as fiction would have been tawdry and unconvincing").

48. Egbert v. Greenberg, 100 Fed. 447, 448 (official form chart"); Rich-righted work was a translation from ardson v. Miller, 20 F. Cas. No. 11,791. 49. Egbert v. Greenberg, 100 Fed. 447; Richardson v. Miller, 20 F. Cas. No. 11.791.

[a] Playing cards.-The fact that playing cards may be used by persons to violate the laws against gambling does not of itself deprive them of the protection of the law. Richardson v. Miller, 20 F. Cas. No. 11,791.

[b] "Official form chart."-It has been held that an "official form chart" which is of value to persons engaged in the breeding, trading, and raising of horses is a proper subject of copyright, although the chart may also be used by persons who bet on horse races. Egbert v. Greenberg, 100 Fed. 447. 448.

50. Broder v. Zeno Mauvais Music Co., 88 Fed. 74.

51. Wright v. Tallis, 1 C. B. 893, 50 ECL 893. 135 Reprint 794 [appr Davies v. Bowes. 209 Fed. 53].

[a] Illustration.-Where plaintiff published a religious work, and on the title page and in a preface represented that the work was a translation from the German by one Sturm,

Unfair competition in books and publications see Trade-Marks, TradeNames, and Unfair Competition [38 Cyc 831].

53. Stone v. Dugan Piano Co., 220 Fed. 837, 136 CCA 583; Slingsby v. Bradford Patent Truck Co., [1905] W. N. 122 (where an illustrated catalogue was denied protection because it falsely represented that the articles depicted were patented by plaintiff, and that plaintiff occupied the whole of certain pictured buildings). 54. See supra § 91 text and note 63. Unclean hands as a defense see infra § 390.

as

55. Hills v. Hoover, 136 Fed. 701; Oliver Ditson Co. v. Littleton, 67 Fed. 905. 15 CCA 61 [aff 62 Fed. 597]. 56. U. S. Rev. St. § 4956, а German writer whose amended by Act March 3, 1891 (26 works had been translated into the U. S. St. at L. 1107). English language and 57. were highly Copyrights by valued and esteemed by the British aliens see infra § 158.

nonresident

was provided that in the case of (1) a book, (2) a photograph, (3) a chromo, or (4) a lithograph, the two copies of the same required to be deposited in the copyright office as a condition of obtaining copyright therein,58 "shall be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives, or drawings on stone made within the limits of the United States, or from transfers made therefrom," and during the existence of such copyright the importation of any book, chromo, lithograph, or photograph, or any edition or editions thereof, or any plates of the same, not made in accordance with such manufacturing requirement, was prohibited, with certain limited exceptions.59 These provisions were limited to the four specified classes of copyrighted works. They did not apply to musical compositions, because these form a distinct copyright class, and hence are