for a series of magazine articles does not authorize use of the pictures in a publication of such articles in separate form.3 32 A mere licensee may not license others.33 A licensor is under an implied negative covenant not to use his reserved rights to the detriment or destruction of the beneficial use of the license granted.34 Where a work is published under a profit sharing agreement, the publisher assuming the risk and the author retaining the copyright, the relation between publisher and author is that of joint adventurers.35 An assignee without notice of a prior revocable license, or a license not limited as to time, may restrain further publication by the licensee.36 But a licensee for a fixed period will be protected during that period against an assignee with notice.3 37 spoken play. 40 39 designed to extend it beyond the limits of the statutory grant are not invalid as being in restraint of trade, or as tending to monopoly.38 Until particular copies have been sold by or with the consent of the copyright proprietor, his control of the terms and conditions of the sale of them is absolute; he is master of the situation.3 Thus the owner of a copyright may by contract fix the price at which copies of the copyrighted work may be sold by his licensee, and such price restriction is valid and enforceable, and violation of it may constitute infringement of the copyright as to copies of the work being sold for the first time. This rule is limited to the original sale; copies once lawfully sold on terms satisfactory to the owner of the copyright become freed from the monopoly and are subject to the ordinary rules applicable to any other species of property." It is now settled, after much conflict of opinion, that a price restriction cannot be made to run with the goods by means of any form thor and a publisher for the publi cation of a specified edition is a license and not an assignment. Reade v. Bentley, 4 Kay & J. 656, 70 Reprint 273. It is suggested that to hold that Beach retained the motion picture rights would violate the intent of the parties, because the motion picture would destroy or impair the commercial value of Klein's dramatic version, and that Klein and the others could not have contemplated such a result. I am far from satisfied that every motion picture interferes with the box office receipts from the same play on the dramatic [§ 260] G. Contracts in Restraint of Trade; Price Restrictions. Copyright being a legal statutory monopoly, contracts appropriate to the enjoyment of that monopoly and not calculated or sents to extending the original copyright to the instruments serving to reproduce mechanically the musical work, does not permit defendant to print, and distribute without additional charge, on separate sheets of paper, the words of the composition in the boxes containing the rolls, although the words and music were not. copyrighted separately; the words "musical composition" having a more limited meaning in the license agreement than in the copyright statute, where the expression means both words and music. Mills, Inc. V. Standard Music Roll Co., 223 Fed. 849, 851 (where the court said: "I can readily perceive that, if the defendant were manufac turing discs or records for use in phonographs or similar instruments, which produce both the words and the music, the license agreements would permit the use of both the words and the music, because both would then enter into the manufacture of the records"). 32. Strahan v. Graham, 16 L. T. Ren. N. S. 87 [aff 17 L. T. Rep. N. S. 457]. 33. Cooper v. Stephens, [1895] 1 Ch. 567; W. Marshall & Co., Ltd. v. A. H. Bull, Ltd., 85 L. T. Rep. N. S. 77. [a] Publication in another's name. Under a license in general terms to another person "to print, publish, and sell," the licensee was not bound under the license to print and publish the musical composition in his own name. Booth v. Edward Lloyd, Ltd., 26 T. L. R. 549. 34 Harper v. Klaw, 232 Fed. 609; Frohman v. Fitch, 164 App. Div. 231, 149 NYS 633; Reade v. Bentley, 4 Kay & J. 656, 70 Reprint 273. [a] Rule applied to motion pictures. (1) Where the owner of the copyright in a novel grants an exclusive license to dramatize and produce in the form of an ordinary drania, there is an implied covenant against granting another a license to produce the work as a moving picture photoplay. The result is that under such circumstances neither party to the original license can produce a photonlay of the work except by bargain with the other. Harper v. Klaw, 232 Fed. 609. (2) "The 'exclusive right to dramatize' the novel 'for presentation on the stage' merely meant that no one else was to be permitted to dramatize for the stage, but did not comprehend that Beach could not grant the right to another independently to dramatize the novel for the screen. Of course. 'stage' is a comprehensive term. College commencements public meetings, motion picture exhibitions take place on the physical structure called 'a stage'; but 'presentation on the stage' in this contract surely means the or the operatic stage. I imagine that the motion picture 'Carmen' will not outlast the living opera. Then it is quite understandable that a novel may be presented to a theater audience in a way quite different from that shown to a motion picture audience and for reasons which are obvious to those who attend both.' Klein v. Beach, 232 Fed. 240, 246 [aff 239 Fed. 108, 151 CCA 282]. [b] Competitive editions. "Where an author has sold an edition of a given number of copies to one publisher, he is not at liberty, before they are sold, to publish the same work himself or through another publisher, in such a manner as to compete with the edition he has sold, but is bound to afford to the purchaser a full opportunity of realizing the benefit of his contract." Reade v. Bentley, 4 Kay & J. 656, 661, 70 Reprint 273 [appr Sweet v. Cater, 11 Sim. 572, 34 EngCh 572, 59 Reprint 994]. Compare Warne v. Routledge, L. R. 18 Eq. 497 (where it was held that there was no implied agreement by the author not to bring out a second edition until the first edition had been sold out). a [c] Case not within rule; dramatizations.-The owner of a copyrighted story, having assigned the right of performing particular copyrighted drama made therefrom, could lawfully give to another the sole right of performing a different dramatic composition of the story, while the first dramatic assignee would have no right to make another dramatization. Harper V. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, Ann Cas1913A 1285]. 42 Joint adventure generally see Joint Adventures [23 Cyc 452]. 36. London Printing, etc., Alliance v. Cox, [1891] 3 Ch. 291. 37. Warne v. Routledge, L. R. 18 Eq. 497. See also supra §§ 39, 251. 38. Bobbs-Merrill Co. V. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]; Murphy v. Christian Press Assoc. Pub. Co., 38 App. Div. 426, 56 NYS 597. [a] Illustration.-A contract between the owner of the copyright of a book and plates for printing it, and one to whom it sells a set of the plates and the right to publish the book from such set, that "plainlybound copies" should not be sold below a certain price, means that the cheapest edition shall not be sold below such price, and prevents better books being sold for less. Murphy v. Christian Press Assoc. Pub. Co., 38 App. Div. 426, 56 NYS 597. 39. Rights conferred by copyright see infra § 264. an 40. Authors, etc., Newspaper Assoc. V. O'Gorman Co., 147 Fed. 616; Assoc. Murphy v. Christian Press Pub. Co., 38 App. Div. 426, 56 NYS 597; Benning v. Dove, 5 C. & P. 427, 24 ECL 638. [a] An between agreement author and a publisher that a copyrighted work shall not be sold below a certain price is not within the principle of contracts in restraint of trade and will bind a subsequent licensee. Murphy v. Christian Press Assoc. Pub. Co., 38 App. Div. 426, 56 NYS 597. 41. 42. See infra § 291. Bauer v. O'Donnell, 229 U. S. 1, 33 SCt 616, 57 L. ed. 1041, 50 LRANS 1185 (patented article); Authors, etc., Assoc. v. O'Gorman Co., 147 Fed. 616; Scribner v. Straus, 147 Fed. 28, 78 CCA 122 [aff 139 Fed. 193, and aff 210 U. S. 352, 28 SCt 735, 52 L. ed. 1094]; Bobbs-Merrill Co. v. Straus, 139 Fed. 155 [aff 147 Fed. 15, 77 CCA 607, 15 LRANS 766 (aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086)]. "The owner of an article made unbook Stevens v. Benning. 6 De G. der a patent right or of a M. & G. 223, 55 EngCh 175, 43 Re-printed under a copyright is in no print 1218 [aff 1 Kay & J. 168, 69 Reprint 414]; Reade v. Bentley, 4 Kay & J. 656, 70 Reprint 273. [d] An exclusive license implies a covenant not to grant a similar license to others, and will support an action for breach of contract. Heap v. Hartley, 42 Ch. D. 461. 35. [a] Partnership.—(1) A profit sharing agreement between an author and a publisher does not necessarily constitute a partnershin between them. Gardiner v. Childs. 8 C. & P. 345, 34 ECL 770. (2) A profit sharing agreement between an au sense a licensee of the patentee or of the owner of the copyright." BobbsMerrill Co. v. Straus, supra. "Upon such facts as are now presented we think the right to vend secured in the patent statute is not distinguishable from the right of vending given in the copyright act. In both instances it was the intention of Congress to secure an exclusive Limited editions. The copyright owner and his assignee for the benefit of creditors is bound by a contract under which copies have been sold under a covenant that only a specified number of copies shall be printed.*7 48 [261] H. Joint Owners. Where a copyright right to sell, and there is no grant Violation of price restrictions as infringement see infra § 291. 43. Straus v. American Publishers' Assoc., 231 U. S. 222, 34 SCt 84, 58 L. ed. 192, LRA1915A 1099; Bauer v. O'Donnell, 229 U. S. 1, 33 SCt 616, 57 L. ed. 1041, 50 LRANS 1185 (patented article); Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086 [aff 147 Fed. 15, 77 CCA 607, 15 LRANS 766 (aff 139 Fed. 155)]; Authors, etc., Assoc. v. O'Gorman Co., 147 Fed. 616; Scribner v. Straus, 147 Fed. 28, 78 CCA 122 [aff 139 Fed. 193, and aff 210 U. S. 352, 28 SCt 735, 52 L. ed. 1094]; BobbsMerrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]. See Henry v. A. B. Dick Co., 224 U. S. 1. 32 SCt 364, 56 L. ed. 645, AnnCas1913D 880 (reviewing cases). 49 is owned by more than one person, the relation is that of tenants in common and not that of joint tenants." The several owners of a copyright may make a contract among themselves as to printing and publishing their work, and one of them cannot set up, as against another, his original rights as a coöwner in violation of such contract.50 In the absence of contract between them, each of several common owners of a copyright has an equal right to enjoy and use the common property without liability to account for profits to the other owners, but there are cases in which a contrary view has 51 Straus v. American Publishers' Assoc., 231 U. S. 222, 34 SCt 84, 58 L. ed. 192, LRA1915A 1099; Mines v. Scribner, 147 Fed. 927; Bobbs-Merrill Co. v. Straus, 139 Fed. 155 [aff 147 Fed. 15, 77 CCA 607, 15 LRANS 766 (aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086)]; Murphy v. Christian Press Assoc. Pub. Co., 38 App. Div. 426, 56 NYS 597. 46. 44. Motion Picture Patents Co. v. "In the present case, it cannot be re [a] Stipulation for limited straint on resale.-A provision in a contract for the sale of a copyrighted book that it should not be resold prior to Aug. 1, 1907, or offered or advertised for resale, was not contrary to public policy. Authors, etc., Assoc. v. O'Gorman Co., 147 Fed. 616. "It was doubtless within the power of Congress to confer such right of restriction upon a patentee. Has it done so? The question has not been determined in any previous case in this court, so far as we are aware. It was dealt with under the copyright statute, however, in the case of Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086. In that case it was undertaken to limit the price of copyrighted books for sale at retail by a notice on each book fixing the price at one dollar and stating that no dealer was licensed to sell it for less and that a sale at a less price would be treated as an infringement of the copyright. It was there held that the statute, in securing to the holder of the copyright the sole right to vend copies of the book, conferred a privilege which, when the book was sold, was exercised by the holder, and that the right secured by the statute was thereby exhausted. The court also held that it was not the purpose of the law to grant the further right to qualify the title of future purchasers by means of the printed notice affixed to the book, and that to give such right would extend the statute beyond its fair meaning and secure privileges not intended to be covered by the act of Congress. In that case it was recognized that there are differences between the copy-specified period, and that they will right statute and the patent statute, and the purpose to decide the question now before us was expressly So far as the use disclaimed. of the terms 'vend' and 'vending' is concerned, the protection intended to be secured is substantially identical. The sale of a patented article is not essentially different from the sale of 45. Straus v. American Publishers' Assoc., 231 U. S. 222, 34 SCt 84, 58 L. ed. 192, LRA1915A 1099 [rev 199 N. Y. 548, 93 NE 1133; prior appeals in state court 193 N. Y. 496, 86 NE 525, 177 N. Y. 473, 69 NE 1107, 101 AmSR 819, 64 LRA 701]; BobbsMerrill Co. v. Straus, 139 Fed. 155 [aff 147 Fed. 15, 77 CCA 607, 15 LRA NS 766 (aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086)]. [a] Rule applied.-Agreements be- can Publishers' Assoc.. 231 U. S. 222. [a] Reason for rule.-"The copyright law cannot help the defendants, because, in the first place the restraint is not confined to copyrighted books, and, if it were, it cannot be so that the right given a single publisher to do as he pleases with his copyrighted book can be extended, so that he can combine with other owners of copyrights and permit his book to be subject to the rules laid Mines down by the united owners." v. Scribner, 147 Fed. 927, 928. [b] Rule applied.-"We suppose that the author of a new geometry may fix the price at which he will sell his work at any sum, or arrange with others for its publication and sale at the stipulated price. But if all the publishers of books on geometry were to combine and agree not to sell any publication on that subject except for a stipulated price, the contract would be in restraint of trade and void. The difference of principle between the two cases is just this: Monopolies are not favored, and agreements to create the same, except where authorized by law, are void. No law authorizes a monopoly of all publications on the subject of geometry; the law does, however, authorize and grant to the author a monopoly in any particular work which he may publish on that subChristian Murphy v. Press ject." Assoc. Pub. Co., 38 App. Div. 426, 430, 56 NYS 597. 47. Rider, Petitioner, 16 R. I. 271, 15 A 72. 48. Joint authors see supra § 27. Lauri v. Renad, [1892] 3 Ch. 402; Powell v. Head, 12 Ch. D. 686. 50. Holt v. Silver, 169 Mass. 435, 48 NE 837; Gould v. Banks, 8 Wend. (N. Y.) 562, 24 AmD 90. 49. [a] Rule applied.-A contract between plaintiff and defendant provided that defendant should print and publish certain copyrighted books which were owned jointly by plaintiff and F, and contribute two thousand dollars as further capital, to be secured by plaintiff, and returned at the termination of the contract. On the termination of the contract plaintiff was bound to return the two thousand dollars to defendant, although the latter had acquired F's rights under the copyright and had equal rights with plaintiff to publish it, and was receiving the benefit of the extra capital. Holt v. Silver, 169 Mass. 435, 48 NE 837. 51. Carter v. Bailey, 64 Me. 458, 18 AmR 273. [a] Reason for rule.-"Each can exercise his own right alone without using, or receiving any aid or benefit whatever from the title or property of the others. But if none be allowed to enjoy his legal interest without the consent of all. then one, by withholding his consent, might practically destroy the value of the whole use. And a use only upon condition of accounting for profits, would compel a disuse, or a risk of skill, capital been taken.52 [§ 262] I. Remedies and Procedure. For any breach of contract the ordinary contract remedies are available.53 An express negative covenant may be enforced by injunction.54 A mere breach of contract cannot be treated and remedied as an infringement,55 but a violation of conditions in a license contract may make the licensee's use un X. INFRINGEMENT [§ 263] A. General Rules— 1. Definition of Infringement or Piracy. Infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by the statute on the owner of the copyright.59 Use of the copyrighted work in any other manner is not an infringement of the copyright." and time with no right to call for a sharing of possible losses. When one owner by exercising a right expressly conferred upon him, in nowise uses or molests the right, title, possession or estate of his co-owners, or hinders them from a full enjoyment, or sale and transfer of their whole property, we fail to perceive any principle of equity which would require him to account therefor. If owners of such property would have the result otherwise, they must bring it about by contract. Such seems to be the rule governing owners in common of patent rights; (Clum v. Brewer, 5 F. Cas. No 2.909, 2 Curt. 506; Vose v. Singer, 4 Allen (Mass.) 226, 81 AmD 696; Mathers v. Green, L. R. 1 Ch. 29, 20 ERC 737; contra, Pitts v. Hall, 20 F. Cas. No. 11,193, 3 Blatchf. 201;) and we think the same principle applicable to the question involved in case of copyright. The bill cannot be sustained so far as it seeks for an account in respect to the copyrights." Carter v. Bailey, 64 Me. 458, 463, 18 AmR 273. 52. Powell v. Head, 12 Ch. D. 686. [a] Reason for contrary view."The statute 3 Will. 4, c. 15, gives the sole right of representation, as I will call it, to the author or his assignee; it being a term of the Act that the singular shall include the plural. In this case you have two assignees, two ladies who became assignees of this opera, or the right of representing it at different times, and therefore they were strictly tenants in common or part-owners of the right of representation, or liberty of representing, as it is called. That right, I take it, could not be exercised by one of them, that is, could not be exercised by one of them in the sense, that one could give the right of representation to a third party. I am not now considering the question (it will be time enough to decide it when it calls for decision) what the respective rights inter se of the two Co-owners would be. There is no possibility of arguing, in respect of these statutory provisions, that one of the two part-owners of the right or liberty of representing or causing to be represented could license a third person to represent without the consent of the other part-owners or owners. It is against the very essence of part-ownership that when there is a tenancy in common, one of the two can dispose of the right of the other, there being no partnership or other form of agency. That being so, I should have said, independently of the provisions of the statute to which I am about to call attention, that when we find the sole right or liberty of representing vested in two persons, and one of them only gives a license stranger, the stranger is still accountable to the other tenant in com to a 60 authorized and therefore an infringement.56 Cases asserting or denying rights under the copyright law present a federal question sufficient to support an appeal to the supreme court from the highest state court.57 A publisher under a profit sharing agreement occupies a fiduciary position which entitles the author to an account.58 OF COPYRIGHT [264] 2. Rights Conferred by Copyright. The rights secured to copyright owners, and which may be infringed, have always been enumerated in the various copyright statutes; but it has been left largely to judicial construction to determine what will constitute infringement.62 The general right secured is the exclusive right to print, reprint, publish, copy, and vend the copyrighted work. Additional rights are conferred by the statute in the case mon for having used the property, | S. 339, 28 SCt 722, 52 L. ed. 1086]; that is, the right of representation, which belonged to the tenants in common." Powell v. Head, 12 Ch. D. 686, 689. 53. See generally Contracts § 790. [a] Damages for breach-In an action to recover from a theatrical company for royalties received by it for licensing plays adapted by plaintiff to be played in stock, the damages would be the agreed percentage of the proceeds as the contract originally read, without any deduction for the amount mistakenly assumed to have been paid by defendant to the author. Fitch v. Shubert Theatrical Co., 174 App. Div. 229, 160 NYS 1066. [b] Royalties.-The remedy to recover royalties reserved under an assignment of a copyright interest in books is an action at law for the royalties rather than in equity for an accounting. Karst v. Prang Educational Co., 132 App. Div. 197, 116 NYS 1049. 54. Ward v. Beeton, L. R. 19 Eq. 207. See also Injunctions [22 Cyc 845]. 55. Harper v. Klaw, 232 Fed. 609. See also infra § 291. 56. Harper v. Klaw, 232 Fed. 609. See also infra § 291. 57. Straus v. American Publishers' Assoc., 231 U. S. 222, 34 SCt 84, 58 L. ed. 192, LRA1915A 1099. See also infra §§ 381, 438; and Courts [11 Cyc 857]. 63 Fenning Film Service, Ltd. v. Wolverhampton, [1914] 3 K. B. 1171; Drone Copyright p 383. [a] Statutory definition.-"By section 2, subsection 1, of the Act 'copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by the Act conferred on the owner of the copyright.'" 570. Corelli v. Gray, 29 T. L. R. [b] Piracy is also used to describe a violation of common-law rights in intellectual productions. Drone Copyright p 383. See supra §§ 58, 59. [c] Plagiarism differs from piracy in that it does not necessarily involve the violation of legal rights, and also in that it does involve a false assumption of authorship, which may or may not be the case in a piracy. Drone Copyright p 383. [d] "The test of whether there had been any infringement of the right of the plaintiffs would be whether any forbidden use had been made of the plaintiffs' publications. Ginn v. Apollo Pub. Co., 215 Fed. 772, 777. [e] Advertising a proposed exhibition of a moving picture amounts to authorizing such exhibition and is itself an infringement for which "damages at large" may be given under the English statute. Fenning Film Service, Ltd. v. Wolverhampton, [1914] 3 K. B. 1171, 1174. 60. Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086; Frost v. Olive Series Pub. Co., 24 T. L. R. 649. 61. See statutes enumerated supra §§ 69, 71, 77 et seq. [a] Federal question.-Plaintiff's contention at the trial in a state court that an agreement between publishers and booksellers to maintain retail prices on copyrighted books not only went beyond the authority conferred in the copyright laws relied on by defendant, but was in "The copyright acts substantially violation of the terms of the Sher- give the following additional rights: man Anti-Trust Act of July 2, 1890 To copyright, and thus secure the (26 U. S. St. at L. 209 c 647), making sole privilege of unlimited multipliillegal combinations in restraint of cation and sale of copies, to sell or trade and tending to monopoly, pre- transfer the unlimited right of resents a claim of federal right which production, sale, and publication, the is necessarily denied when the high-limited right of serial publication, est state court affirms a judgment below in favor of defendant, so as to sustain the appellate jurisdiction of the federal supreme court, under U. S. Rev. St. § 709, governing writs of error to a state court. Straus V. American Publishers' Assoc.. 231 U. S. 222, 34 SCt 84, 58 L. ed. 192, LRA 1915A 1099. 58. Barry v. Stevens, 31 Beav. 258, 54 Reprint 1137. 59. English Copyright Act. 1911 (1 & 2 Geo. V c 46 § 2 (1)) (which concise and accurate statutory definition is but a codification of existing law); Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722. 52 L. ed. 1086; Ginn v. Apollo Pub. Co.. 215 Fed. 772; Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607. 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. the right of publication in book form. the right of translation, the right of dramatization, or one or more of these rights in specific territory, and the right to secure a copyright either generally, or in one or more countries whose laws permit it, either in the name of the author or assignee. Also the right to the author to license the sale or other restricted enjoyment of some lesser right, without the power to copyright." Harper v. Donohue. 144 Fed. 491, 492 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]. 62. Drone Copyright pp 383-386. 63. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 1) (which was a substantial reënactment of existing law, excent as to the provisions relating to devices for mechanical reproductions, which were new in 68 72 64 70 of particular classes of works, such as the right to 74 [265] 3. Rights Not Conferred by Copyright this act); U. S. Rev. St. § 4952; 26 U. S. St. at L. 1107; West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]. "The peculiar right conferred by statutory copyright is to multiply copies after publication, to the exclusion of others." Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 19, 77 CCA 607, 15 LRANS 766 [aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]. [a] The right of multiplying copies by printing includes the right to publish and sell. Howitt v. Hall, 6 L. T. Rep. N. S. 348. 64. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 1 (b) (c) (d) (e)). 65. See infra § 301. 66. Ricordi v. Mason, 201 Fed. 184 [aff 210 Fed. 277, 127 CCA 125]. See also infra § 297. or [a] Abridged story of opera play. "Although section 1 of the Copyright Act, which went into effect July 1, 1909 (Act March 4, 1909, c 320, 35 Stat. 1075 [U. S. Comp. St. Supp. 1911, p. 1472]), in broad terms gives complainant the exclusive right to translate the copyrighted work into other languages or dialects, or make any other version thereof.' etc., still the summing up of a libretto by merely outlining the plot or theme, detailing the incidents in such a way as to give in the fewest words possible the so-called story, as was done by the defendant with the operas 'Germania' and 'Iris,' does not constitute the making of such a version thereof as was in the contemplation of Congress when the copyright statute was enacted. A literal definition of the words 'make any other version thereof would not only include the defendant's publication, but also the newspaper publication, after performance, of any reviews or criticisms, even when written by reporters invited by the owner of the play to witness the production. The publication of abridgments or versions of the play or opera being permitted to the newspapers, it makes no difference that another, without dialogue or stage directions, embodies practically the same information in a salable booklet." Ricordi v. Mason, 201 Fed. 184 [aff 210 Fed. 277, 127 CCA 125]. 67. See infra § 302. 68. 69. See infra § 313. See infra §§ 314-318, 321. 70. See infra § 302. 71. See infra § 297. 72. See infra $$ 317, 322, 323. 73. 74. V. Standard Music See infra §§ 324-327. See infra §§ 276-329. 75. Witmark Roll Co.. 221 Fed. 376. 137 CCA 184; Davies v. Bowes. 209 Fed. 53 [aff 219 Fed. 178, 154 CCA 552]. But see Huebsch v. Arthur H. Crist Co., 209 Fed. 885 (where Act March 4. 1909 [35 U. S. St. at L. 1075 c 320 25] relative to relief obtainable for infringing a copyright was held to apply to infringements of copyright obtained prior to its passage provided the infringements were subsequent thereto). "The right of an author to a monopoly of his publications is meastred and determined by the copyright act." Bobbs-Merrill Co. V. Straus, 147 Fed. 15, 23. 77 CCA 607. 15 LRANS 766 [aff 210 U. S. 339, 28 [§ 266] b. Art or System Expounded. The copyright in a book does not extend to and protect the art or system of which the work is an exposition,80 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]. SCt 722. 52 L. ed. 1086]. [a] Rule applied.—(1) Where a copyrighted newspaper published a short fiction story. its rights against an alleged infringer were measured by the statute in force at the time of publication. Davies V. Bowes, 209 Fed. 53 [aff 219 Fed. 178, 134 CCA 552]. (2) Whether copyright obtained in 1908 on musical composition was infringed by distribution of words alone is governed by prior law, and not by Copyright Act of March 4, 1909, in view of §§ 1, 3. and 63. Witmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184 [aff 213 Fed. 532]. 76. Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086 [aff 147 Fed. 15, 77 CCA 607, 15 LRANS 766 (aff 139 Fed. 155)]; Baker v. Selden, 101 U. S. 99, 25 L. ed. 841; Eichel v. Marcin, 241 Fed. 404; John D. Park, etc., Co. v. Hartman, 153 Fed. 24, 82 CCA 158, 12 LRANS 135 [certiorari dism 212 U. S. 588, 29 SCt 689, 53 L. ed. 662]; Burk v. Relief, etc., Assoc., 3 Hawaii Fed. 388; Landeker v. Louis Wolff, etc., Co., Ltd., 52 Sol. J. 45. 77. Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]. "There are differences between the patent and copyright statutes in the extent of the protection granted by them. This was recognized by Judge Lurton, who wrote a leading case on the subject in the Federal courts (Heaton-Peninsular Button Fastener Co. v. Eureka Specialty Co., 77 Fed. 288, 25 CCA 267, 35 LRA 728), for he said in the subsequent case of Park v. Hartman, 153 Fed. 24, 82 CCA 158, 12 LRANS 135: "There are such wide differences between the right of multiplying and vending copies of a production protected by the copyright statute and the rights secured to an inventor under the patent statutes, that the cases which relate to the one subject are not altogether controlling as to the other.' Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086. cases [a] Patents and copyrights contrasted.-"It may be said generally, however, that there is such a distinction between rights of copyright and patent rights that the decision of under one class would not necessarily be the controlling in other class. The protection afforded by the patent law is broader in the case of patents than in that of copyright. By a grant of copyright the owner of the work acquires the exclusive right of multiplication of copies; by a grant of a patent the patentee acquires the exclusive right to make and use the thing patented. The patent law protects the production and use of the creative conception reduced to practical shape in various forms; the copyright law protects the publication of copies in the form or substance of the particular creative conception in which it has been expressed by its author. The right secured by the copyright act is the right to that arrangement of words which the author has selected to express his ideas.' Holmes v. Hurst. 174 U. S. 82. 19 SCt 606, 43 ed. 904." Bobbs-Merrill Co. V. Straus, 147 Fed. 15, 23, 77 CCA 607, L. 78. Bobbs-Merrill Co. V. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339. 28 SCt 722. 52 L. ed. 1086]. See Patents [30 Cyc 971 et seq]. 79. Eichel v. Marcin, 241 Fed. 404; Lawrence v. Dana, 14 F. Cas. No. 8,136, 4 Cliff. 1; Burk v. Relief, etc., Assoc., 3 Hawaii Fed. 388. Pair and unfair use see infra §§ 288. 299. 80. Baker v. Selden, 101 U. S. 99, 25 L. ed. 841; Stone v. Dugan Piano Co., 210 Fed. 399 [aff 220 Fed. 837, 136 CCA 583]; Burk v. Johnson, 146 Fed. 209. 76 CCA 567; Griggs v. Perrin, 49 Fed. 15; Burk v. Relief, etc., Assoc., 3 Hawaii Fed. 388, 391; Hollinrake v. Truswell, [1894] 3 Ch. 420; Cartwright v. Wharton, 25 Ont. L. 357, 20 ÖntWR 853, 1 DomLR 392. "A copyright gives its owner the exclusive right to sell the book or design copyrighted and to republish it as he may desire, but it does not give him the exclusive right to use the methods which may be set forth in such publication, even though they may be original with him and published by him for the first time. copyright is different from a patent." Burk v. Relief, etc., Assoc., supra. [a] The leading case on this subject is Baker v. Selden, 101 U. S. 99, 101, 25 L. ed. 841 (where it was held that a system of bookkeeping was not protected by the copyright of a book describing it, the court saying: "There is no doubt that a work on the subject of bookkeeping, though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of bookkeeping, and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book, as such and the art which it is intended to illustrate. The mere statement of the proposition is so evident, that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of bookkeeping. treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective,-would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein"). A [b] Drawings and illustrations of art or system. "The copyright of a book on perspective. no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes or drawing described, though they may never have been known or used before. By publishing the book, without getting a patent for the art, the latter is given to 81 82 such as a system of bookkeeping, of advertising, or of stenography;83 or a plan of organization.* Protection of the art or system which a book explains or illustrates is the province, not of copyright, but of letters patent.s [267] c. Facts, Theories, Speculations, Ideas, 85 and Opinions. Theories, speculations, ideas, or opinions, however original they may be, are not covered by the copyright of a book in which they are propounded or expressed, and hence the adop tion and use of them by another is not an infringement of copyright.86 But the association, arrange of a manual of instruction and is designed to teach piano dealers how to attractively advertise their wares and contains forms, or models, or diagrams of advertisements, just as we may choose to term them. If complainant had published and copyrighted a manual of instruction designed to teach piano makers how to build the instruments. any person would be entitled to follow the instructions and diagrams to construct a piano. I can see no distinction between a system of instruction as to how to make a piano and a system of instruction as to how to draw an advertisement. The copyright of the book did not prevent the general public from making use of the book for the purpose for which it was designed, notwithstanding such use results in the publication of a part of the book in the form of an advertisement. In my opinion the case is on all fours with the decision in Baker v. Selden, 101 U. S. 99, 25 L. ed. 841." Stone v. Dugan Piano Co., 210 Fed. 399. 400 [aff 220 Fed. 837, 136 CCA 583]. 83. Griggs v. Perrin, 49 Fed. 15 [foll Baker v. Selden, 101 U. S. 99, 25 L. ed. 841]. the public. The fact that the art described in the book by illustrations of lines and figures which are reproduced in practice in the application of the art, makes no difference. Those illustrations are the mere language employed by the author to convey his ideas more clearly. Had he used words of description instead of diagrams (which merely stand in the place of words), there could not be the slightest doubt that others, applying the art to practical use, might lawfully draw the lines and diagrams which were in the author's mind, and which he thus described by words in his book. The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application. Of course. these observations are not intended to apply to ornamental designs, or pictorial illustrations addressed to the taste. Of these it may be said, that their form is their essence, and their object, the production of pleasure in their contemplation. This is their final end. They are as much the product of genius and the result of composition, as are the lines of the poet or the historian's periods. On the other hand, the teachings of science and the rules and methods of useful art have their final end in application and use; and this appli-explanatory of that art as developed cation and use are what the public derive from the publication of a book which teaches them. But as embodied and taught in a literary composition or book, their essence consists only in their statement. This alone is what is secured by the copy. right. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright." Baker v. Selden, 101 U. S. 99. 103, 25 L. ed. 841. 81. Baker v. Selden, 101 U. S. 99, 25 L. ed. 841. [a] Form of account book.-"The copyright of a book on bookkeeping cannot secure the exclusive right to make. sell, and use account books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public. And. of course. in using the art. the ruled lines and headings of accounts must necessarily be used as incident to it." Baker v. Selden, 101 U. S. 99, 104, 25 L. ed. 841. 82. Stone v. Dugan Piano Co., 210 Fed. 399 [aff 220 Fed. 837, 136 CCA 5831. [a] Advertisements copied from manual-"The book is in the nature [a] Rule stated and applied.—“A party may invent a new machine and write a book describing it for which he may obtain a copyright. This does not prevent another author from describing the same machine. He must not copy the copyrighted book, but he may write one of his own. So with a process, a system or an art, the fact that one person has described it and obtained a copyright for his description does not prevent others from describing the same art in their own language. The copyright book is sacred, but not the subject of which it treats. If the defendants have described the complainant's system they have not offended, for that reason only, against the copyright law. If they have copied complainant's book they have offended against that law. As the complainant has no right to a monopoly of the art of short-hand writing, because he has written a book by him, and as there is insufficient proof to show that the defendants have copied the complainant's book, considered apart from the complainant's system, it follows that the exceptions disputing the master's conclusion of law must be overruled and the motion for a preliminary injunction denied." Griggs v. Perrin, 49 Fed. 15. 84. Burk v. Johnson, 146 Fed. 209, 76 CCA 567; Burk v. Relief, etc., Assoc., 3 Hawaii Fed. 388. [a] Articles of association and bylaws.-The copyright of a pamphlet containing articles of association and by-laws of a mutual burial association did not protect the system. considered merely as a system, so as to confer on the person owning the copyright or his transferees the exclusive right to organize associations under the plan described. Burk v. Johnson, 146 Fed. 209, 76 CCA 567. 85. Baker v. Selden, 101 U. S. 99. 105, 25 L. ed. 841; Colliery Engineer Co. v. United Correspondence Schools Co.. 94 Fed. 152. "The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letterspatent." Baker v. Selden, supra. [a] Reason for rule.-"To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government. The difference between the two things, letters-patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book, if he pleases; but that only secures to him the exclusive rignt of printing and publishing his book, So of all other inventions or discoveries." Baker v. Selden, 101 U. S. 99, 102, 25 L. ed. 841. 86. White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628; Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904; Eichel v. Marcin, 241 Fed. 404; White-Smith Music Pub. Co. v. Apollo Co., 139 Fed. 427 [aff 147 Fed. 226, 77 CCA 368 (aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655. 14 AnnCas 628)]; American Mutoscope, etc.. Co. v. Edison Mfg. Co., 137 Fed. 262; Werckmeister v. American Lith. Co., 134 Fed. 321, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244]; Simms v. Stanton, 75 Fed. 6; Greene v. Bishop, 10 F. Cas. No. 5,763, 1 Cliff. 186; Stowe v. Thomas, 23 F. Cas. No. 13.514, 5 Wall. Jr. 547; Carter v. Bailey, 64 Me. 458, 18 AmR 273; Pike v. Nicholas, L. R. 5 Ch. 251. 260 note; Chilton v. Progress Printing, etc., Co., [1895] 2 Ch. 29 (selection of horses likely to win races in which they are entered); Hollinrake v. Truswell, [1894] 3 Ch. 420; Millar v. Taylor, 4 Burr. 2362, 98 Reprint 201; Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; Cartwright v. Wharton, 25 Ont. L. 357, 20 OntWR 853. 1 DomLR 392. "Throughout the act it is apparent that Congress has dealt with the concrete and not with an abstract right of property in ideas or mental conceptions." White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 16. 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628. [a] Reason and extent of rule.(1) "The object of copyright is to promote science and the useful arts. If an author, by originating a new arrangement and form of expression of certain ideas or conceptions. could withdraw these ideas or conceptions from the stock of materials to be used by other authors, each copyright would narrow the field of thought open for development and exploitation. and science. poetry, narrative, and dramatic fiction and other branches of literature would be hindered by copyright, instead of being promoted. A poem consists of |