ment, and combination of ideas and thoughts makes a particular literary composition, and the appropriation and use of them in that arrangement and combination is an. infringement.$7 Protection is afforded only to the material or tangible semblance in which the intellectual conception is expressed.88 This rule is sometimes expressed by saying that copyright resides only in the order of words selected by the author to express his ideas.89 But this must

90

not be taken too narrowly, for it is well settled that an infringement need not be a complete and exact copy, and that paraphrasing or copying with evasive and colorable alterations is an infringement, although there is little or no verbal identity between the two works." Copyright confers no monopoly in the facts stated; anyone else has an equal right to state such facts when he learns of them.92 There is no copyright in mere news,93 although the form

which it represents are as free as
the birds of the air or the wild beasts
of the forest, but they belong to
him who first reduces them to cap-
tivity. The Greeks reasoned that
the perfect statue already existed
in the block of marbie, and that it
required only
the genius of the
sculptor to develop its proportions.
Copyright protects the captor of the
idea, the genius of the sculptor, by
giving him the exclusive property in
his acquisition or creation." Werck-
meister v. American Lith. Co., 134
Fed. 321, 324, 69 CCA 553, 68 LRA
591 [rev 126 Fed. 244].

[c] Selections of winning horse.
Plaintiff, who was the publisher of
a registered weekly periodical, in-
serted each week under the title of
"One Horse Selections," a list of
horses which he expected to win at
races in the ensuing week. Defend-
ants published each day, at race
meetings, a sheet or card giving un-
der the title "The Specials, One
Horse Finals," a list of horses which
plaintiff and other sporting authori-
ties had selected as likely to win in
races on that particular day, with the
names of those who had selected
them. It was held that the announce-
ment of the horses which plaintiff
had selected as winners was not in
the nature of a literary composition
which could be protected under the
copyright in plaintiff's periodical.
Chilton v. Progress Printing, etc., Co.,
[1895] 2 Ch. 29.

87. Drone Copyright p 385.

words, expressing conceptions of
words or lines of thoughts; but copy-
right in the poem gives no monopoly
in the separate words, or in the
ideas, conception, or facts expressed
or described by the words. А сору-
right extends only to the arrange-
ment of the words. A copyright does
not give a monopoly in any incident
in a play. Other authors have a
right to exploit the facts, experi-
ences, field of thought and general
ideas, provided they do not substan-
tially copy a concrete form, in which
the circumstances and ideas have
been developed, arranged, and put
into shape. Holmes v. Hurst, 174 U.
S. 82, 19 SCt 606, 43 L. ed. 904.
Copyright protection is extended to
authors, mainly with a view to in-
ducing them to give their ideas to
the public, so that they may be
added to the intellectual store, ac-
cessible to the people, and that they
may be used for the intellectual ad-
vancement of mankind. It was well
put by Lord Mansfield in Sayre v.
Moore, 1 East 361 note b, 102 Re-
print 139, when he said: 'We must
take care to guard against two ex-
tremes equally prejudicial: The one
that men of ability, who have em-
ployed their time for the service of
the community, may not be deprived
of their just merits and the reward
of their ingenuity and labor; the
other, that the world may not be de-
prived of improvements, nor the
progress of the arts be retarded. The
act that secures copyright to authors
guards against the piracy of the
words and sentiments, but it does not
prohibit writing on the same sub-
ject.' An author may have no mo-
nopoly upon any theory propounded
by him, or in the speculations by
which he has supported it, nor even
in the use of the published results
of his own observations. Bauer v.
O'Donnell, 229 U. S. 1. 33 SCt 616,
57 L. ed. 1041, 50 LRANS 1185, Ann
Cas1915A 150; Baker v. Selden, 101
U. S. 99. 25 L. ed. 841; Eichel V.
Marcin. 241 Fed. 404, 408, 410."
(2) "The doctrine that an
an-
thor has a right of property in "The statute has not provided for
his ideas and is entitled to de- the protection of the intellectual
mand for them the same perpetual conception apart from the thing pro-
protection which the law accords to duced, however meritorious such con-
the proprietor of personal property ception may be, but has provided for
generally, finds no recognition either the making and filing of a tangible
in the common law or in the statutes thing, against the publication and
of any civilized country. When he duplication of which it is the purpose
has embodied his thoughts in manu- of the statute to protect the com-
script. the latter is his exclusive poser." White-Smith Music Pub. Co.
property having the characteristics v. Apollo Co., 209 U. S. 1, 17, 28 SCt
of transfer and succession common 319, 52 L. ed. 655, 14 AnnCas 628.
to personal property. Being his
[a] Musical compositions.-"The
property, the author may exercise words 'musical composition' un-
full dominion over it. He may pub-doubtedly relate to the intellectual
lish it to the world or not, at his conception of the composer; but
option. Little v. Hall, 16 How. (U. manifestly a careful reading of the
S.) 165, 15 L. ed. 328; Bartlett v. copyright law, in connection with the
Crittenden, 2 F. Cas. No. 1,076, 5 Mc-authorities construing the act, indi-
Lean 32; Palmer v. De Witt, 47 N. cates that protection only of the
Y. 532. 7 AmR 480. If he publishes material semblance in which the
his book he ceases to have any ex-
clusive claim to the ideas or senti-
ments thereon expressed, considered
apart from the language or the out-
ward semblance in which they are
conveyed; for he can no longer ex-
clusively appropriate the thoughts
which have entered into the under-
standings of other persons through
publication, or prevent the unlimited

use

of every advantage which the purchaser can reap from the doctrine or sentiments which the work contains." Carter v. Bailey. 64 Me. 458. 461, 18 AmR 273. [b]

Art work The conceptions

88. White-Smith Music Pub. Co. v. Apollo Co.. 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628 [aff 147 Fed. 226, 77 CCA 368 (aff 139 Fed. 427)]; Stowe v. Thomas, 23 F. Cas. No. 13,514, 2 Wall. Jr. 547; Chilton v. Progress Printing, etc., Co., [1895] 2 Ch. 29; Hollinrake v. Truswell. [1894] 3 Ch. 420; Walter v. Steinkopff, [1892] 3 Ch. 489; Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; Springfield v. Thame, 89 L. T. Rep. N. S. 242; Cartwright v. Wharton, 25 Ont. L. 357, 20 OntWR 853, 1 DomLR 392.

musical composition finds expression
is afforded. Ditson v. Littleton, 67
Fed. 905, 15 CCA 61. The musical
composition, as an idea in the con-
crete, is not copyrightable as such.
That which gives the conception cor-
poreal and tangible existence is the
subject of copyrighting. To hold
otherwise, indeed. would be a wide
departure from the obvious intention
of Congress in extending to the au-
thor, inventor, designer. proprietor,
etc., the protection secured by stat-
ute.' White-Smith Music Pub. Co. v.
Apollo Co.. 139 Fed. 427. 430 [aff 147
Fed. 226, 77 CCA 368 (aff 209 U. S.

1, 28 SCt 319, 52 L. ed. 655, 14 Ann Cas 628)].

89. Kalem v. Harper, 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas 1913A 1285; Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904; Stowe v. Thomas, 23 F. Cas. No. 13,514, 2 Wall. Jr. 547; Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, AnnCas1912D 551; Jeffreys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681.

[a] Other expressions of rule.(1) It is an interest in the intangible and impalpable thought and the particular verbal garments in which it has been clothed." Baker v. Libbie, 210 Mass. 599, 605, 97 NE 109, 37 LRANS 944, AnnCas1912D 551. (2) "The right thus secured by the copyright act is not a right to the use of certain words, because they are the common property of the human race, and are as little susceptible of private appropriation as air or sunlight; nor is it the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the author. But the right is to that arrangement of words which the author has selected to express his ideas. Or, as Lord Mansfield describes it, 'an incorporeal right to print a set of intellectual ideas, or modes of thinking, communicated in a set of words or sentences, and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever.' Millar v. Taylor, 4 Burr. 2303, 2396, 98 Reprint 201. The nature of this property is perhaps best defined by Mr. Justice Erle in Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681: The subject of property is the order of words in the author's composition; not the words themselves, they being analogous to the elements of matter, which are not appropriated unless combined, nor the ideas expressed by those words, they existing in the mind alone, which is not capable of appropriation.'"

Holmes v. Hurst, 174 U. S. 82, 86, 19 SCt 606, 43 L. ed. 904. (3) "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.'" Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 24, 77 CCA 607, 15 LRANS 766 [aff 210 U. S. 339, 28 SCt 722. 52 L. ed. 1086]. (4) "When he has sold his book, the only property which he reserves to himself, or which the law gives to him, is the exclusive right to multiply the copies of that particular combination of characters which exhibits to the eyes of another the ideas intended to be conveyed. This is what the law terms copy or copyright." Stowe v. Thomas, 23 F. Cas. No. 13,514, 2 Wall. Jr. 547.

90.

91. 92.

See infra § 276.

See infra § 279.

Davies v. Bowes, 209 Fed. 53 [aff 219 Fed. 178. 134 CCA 552]. 93. Davies v. Bowes. 209 Fed. 53 [aff 219 Fed. 178, 134 CCA 5521: National Tel. News Co. V. Western Union Tel. Co., 119 Fed. 294, 56 CCA 198, 60 LRA 805; Tribune Co. v. Associated Press, 116 Fed. 126; State v. Associated Press. 159 Mo. 410, 60 SW 91, 81 AmSR 368, 51 LRA 151; Walter v. Steinkopff, [1892] 3 Ch.

[§ 269] e. Form and Size. The copyright secured in a book does not cover its form and size.98 [§ 270] f. Plan and Symbols Used in Imparting Information. A copyright does not extend to and 489; Springfield v. Thames, 89 L. T. Rep. N. S. 242. See also supra §§ 102, 128.

'in

"Nor is there any more property in 'news' to-wit, 'information,' telligence,' 'knowledge,' than there is in the 'the viewless winds,' until the 'guinea stamp' of a copyright is impressed upon its external similitude, thus giving it one of the elements of property, to-wit, governmental protection for a limited period." State v. Associated Press, 159 Mo. 410, 457, 60 SW 91, 81 AmSR 368, 51 LRA 151.

[a] Fiction masquerading as fact. -There is no copyright in an original story printed in a newspaper as a report of an actual event. Davies v. Bowes, 209 Fed. 53, 55 [aff 219 Fed. 178, 134 CCA 5521 (where the court said: "Decision in this case is put upon a single narrow ground-not because other grounds could not be found, but because the point to be stated depends upon a rule of morals. There never was any copyright in this alleged episode of trial, because it was printed as news; it was presented to the public as matter of fact and not of fiction; the readers of the Sun were invited to believe it, and Davies substantially admits that he wrote it in the form he did in order to induce belief. How much belief is to be accorded to newspaper stories is matter of opinion; but it is a matter of morals that he who puts forth a thing as verity shall not be heard to allege for profit that it is fiction").

Property in news see supra § 21. 94. Davies v. Bowes, 209 Fed. 53 [aff 219 Fed. 178, 134 CCA 552]; National Tel. News Co. V. Western Union Tel. Co., 119 Fed. 294, 56 CCA 198, 60 LRA 805; State v. Associated Press, 159 Mo. 410, 60 SW 91. 81 AmSR 368, 51 LRA 151; Chilton v. Progress Printing, etc., Co., [1895] 2 Ch. 29; Walter v. Steinkopff, [1892] 3 Ch. 489, 495; Springfield v. Thame, 89 L. T. Rep. N. S. 242.

"It is said that there is no copyright in news. But there is or may be copyright in the particular forms of language or modes of expression by which information is conveyed. and not the less so because the information may be with respect to the current events of the day." Walter v. Steinkopff, supra.

may

"Of course a statement of fact against any piracy of the form of statement, because such form may, and often does, display literary effort of merit. But there can be no piracy of the facts, because facts are public property. Nor does it change the result that the facts are stated in dramatic form. It is conceivable that the actual dialogue of a courtroom would be attractive on the stage, but the reporter of said dialogue could never obtain_copyright thereupon." Davies v. Bowes, 209 Fed. 53, 55 [aff 219 Fed. 178, 134 CCA 552].

be protected by copyright

densed newspaper
fringement of the
tion).

protect the symbols and signs used in a work, or the general plan or method of imparting the information. The same signs, symbols, and plan may be used in another work, provided there is no copying of the information or other infringing use.

[271] g. Mode of Advertising. A copyright secured in a work designed for the purposes of advertisement does not protect the plan of advertising adopted.3

[§ 272] 4. 4. Component Parts of Copyrighted Work-a. In General. The act of 1909 expressly provides that a copyright shall protect all the copyrightable component parts of the work copyrighted, paragraph no in- | put in operation a scheme for coloriginal contribu- | lecting, classifying, and putting in convenient form information as to the financial standing of business men in towns or counties with a key thereto, the same being intended for the use of business men in the same locality. It was held that it was no infringement that defendant by the same method obtained by his own efforts like information as to the standing of parties in a different county, and published the same for the same purpose. Burnell v. Chown, 69 Fed. 993.

95. Chautauqua School of Nursing v. National School of Nursing, 238 Fed. 151, 151 CCA 227 [rev 211 Fed. 1014]; Falk v. City Item Printing Co., 79 Fed. 321; Centennial Catalogue Co. v. Porter, 5 F. Cas. No. 2,546; Hanfstaengl v. Baines, [1895] A. C. 20; Kenrick v. Lawrence, 25 Q. B. D. 99; Springfield v. Thame, 89 L. T. Rep. N. S. 242; Matthewson v. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103.

96. National Cloak, etc., Co. V. Kaufman, 189 Fed. 215; Maxwell v. Goodwin, 93 Fed. 665; Mead v. West Pub. Co., 80 Fed. 380; Centennial Catalogue Co. v. Porter, 5 F. Cas. No. 2,546, 2 WklyNC (Pa.) 601; Wilkins v. Aikin, 17 Ves. Jr. 422, 34 Reprint 163.

[a] Rule applied to law books.Where an author producing a new compilation of an unprotected law treatise by a third person has introduced into the text new chapters on subjects not treated in the original, it is not an infringement for a still later compiler of the original work to derive from the first compilation the idea of also treating these new topics, provided he does not reproduce any of the new matter in the first compilation. Mead v. West Pub. Co., 80 Fed. 380.

97. Chautauqua School of Nursing v. National School of Nursing, 238 Fed. 151, 151 CCA 227 [rev 211 Fed. 1014]; National Cloak, etc., Co. v. Kaufman, 189 Fed. 215; Matthewson v. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103. See infra §§ 278, 288, 299.

Compilations as an illustration of this rule see infra § 307.

98. Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904, [aff 80 Fed. 514, 25 CCA 610 (aff 76 Fed. 757)]; Merriam v. Famous Shoe, etc., Co., 47 Fed. 411.

99. Perris v. Hexamer, 99 U. S. 674, 25 L. ed. 308. See also supra § 266.

[a] Coloring of map and key thereto.-Where the complainants had published a series of maps for the use of insurers, using a peculiar system of coloring and signs explained by a key, and defendants published maps of a different territory, which were arranged substantially on the same plan, it was held that there was no infringement of the complainant's copyright in their maps. Perris v. Hexamer, 99 U. S. 674. 25 L. ed. 308.

2. See cases supra notes 99, 1.

[a] Reason for rule.-"The complainants have no more an exclusive right to use the form of the characters they employ to express their ideas upon the face of the map, than they have to use the form of type they select to print the key. Scarcely any map is published on which certain arbítrary signs, explained by a key printed at some convenient place for reference, are not used to designate objects of special interest, such as rivers, railroads, boundaries, cities, towns, &c.; and yet we think it has never been supposed that a simple copyright of the map gave the publisher an exclusive right to the use upon other maps of the particular signs and key which he saw fit to adopt for the purposes of his delineations. That, however, is what the complainants seek to accomplish in this case. The defendant has not copied their maps. All he has done at any time has been to use to some extent their system of arbitrary signs and their key." Perris v. Hexamer, 99 U. S. 674, 676, 25 L. ed. 308.

3. Mutual Adv. Co. v. Refo, 76 Fed. 961 (mode of advertising with coupons; Ehret v. Pierce, 10 Fed. 553, 18 Blatchf. 302. See also Stone v. Dugan Piano Co., 210 Fed. 399 [aff 220 Fed. 837. 136 CCA 583] (quoted supra § 266 note 82 [a]).

[a] Rule applied.-In a suit where plaintiff sought to restrain the infringement of a copyrighted chart of artificial teeth, it appeared that defendant had published a chart which while not copied from plaintiff's was constructed on the same plan as that. The court held that plaintiff could have no copyright in the plan, and that therefore defendant's chart was not an infringement. In delivering the opinion of the court Butler, J., said: "The defendant has not copied and published the plaintiff's charts, but has employed simply the 1. Perris v. Hexamer. 99 same plan of advertising his own U. S. manufacture. 674. 25 L. ed. 308; Burnell v. Chown, That he has done 69 Fed. 993; Cartwright v. Wharton. more cannot justly be urged. Has he trespassed upon 25 Ont. L. 357, 20 OntWR 853. 1 the plaintiff's DomLR 392. See also Lawrence v. rights by so doing? Without considCupples, 14 F. Cas. No. 8,135; Bul-ering the question whether the plainlinger v. Mackey, 4 F. Cas. No. 2,127, 15 Blatchf. 550 (both of which anything, it is sufficient to say that cases were determined on the ground that the plan or arrangement was not novel; So far as these cases seem to support the view that a copyright would have protected the plan or arrangement if it had been novel they are unsound).

[a] Rule applied.-"There is no copyright in news, but only in the manner of expressing it." Springfield v. Thame, 89 L. T. Rep. N. S. [a] Compilation and key to credit 242 (holding a rewritten and con- ratings-Complainant conceived and

tiff has secured a valid copyright for

we are well satisfied he has not secured a monopoly of this plan. The copyright laws do not embrace such an object. It could be secured, if at all. only by letters patent. That it could be thus secured we do not mean to suggest. To enlarge upon this point would not be profitable. Its truth, indeed, seems SO

which remain unchanged. But if the new publication contains new and original matter, a new copyright is necessary to the protection of such additional matter, and if none is taken out the new matter becomes public property, just as the original work would have become if a copyright for it had not been secured.10

[§ 273] b. Pictorial Illustrations, Maps, Charts, Cuts, Prints, Engravings, Etc. The copyright secured in a book extends to and protects not only the letterpress but also the pictorial illustrations, maps, charts, cuts, prints, engravings, etc., which are contained in and form part of the work.11 While

copyright without some copying,2 the mere fact of
similarity, or even identity, between two works does
not of itself make one an infringement of the other.43
Mere priority in time does not confer a monopoly,
there being a sharp distinction in this respect be-
tween copyrights and patents. Both works may
be entitled to copyright, although identical, if each
is an original and independent production.15 Such
similarity or identity is merely evidence of copy-

be to some extent a copy of the first.
Boosey v. Whight, [1900] 1 Ch. 122,
2 BRC 85 [aff [1899] 1 Ch. 836].
42. See supra § 277.

43. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; Gross v. Seligman, 212 Fed. 930, 129 CCA 450; Sampson, etc., Co. v. Seaver-Radford Co., 140 Fed. 539, 72 CCA 55 [rev 134 Fed. 890]: Lawrence v. Dana, 14 F. Cas. No. 8.136, 4 Cliff. 1; Kirke La Shelle Co. v. Armstrong, 173 App. Div. 232, 159 NYS 363.

48

the Copyright Act, 1911, as under the
former law, no absolute monopoly is
given to authors analogous to that
conferred on inventors of patents;
that is to say, if it could be shown
as a matter of fact that two pre-
cisely similar works were in fact
produced wholly independently of
one another, the author of the work
published first would not be entitled
to restrain the publication by the
other author of that author's inde-
pendent and original work. What is
given is the merely negative right
to prevent the appropriation of the
labours of an author by another."
Per Sargant, J., in Corelli v. Gray,
29 T. L. R. 570.

45. See supra § 94.

V.

ing-more or less strong according to circumstances
and the explanations which may be made of it.48
It is only where the similarity or identity is due
to copying from the copyrighted work that the
later work may be deemed an infringement."7
Thus if a person, without making any use of a
prior copyrighted work, by his own independent
labor produces something similar, there is no in-
fringement.* So one work does not violate the
this proposition is S. S. White Dental
Co. v. Sibley, 38 Fed. 751. This is
not applicable, holding merely that,
by copyrighting a chart showing en-
graved illustrations of artificial
teeth made by plaintiff, a monopoly
was not secured of that plan of ad-
vertising. An authority which ap-
parently sustains defendant's con-
tention, however, is found in Reed
Carusi, 20 F. Cas. No. 11,642.
Taney 72, where Mr. Justice Taney
held, in the case of a musical com-
position, that defendant was not
liable for producing a piece, the
same in all important parts, if it
was not taken from the plaintiff's,
but was the effort of defendant's
Own mind. That cause. however,
was an action to recover penalties
under the seventh section of the act
of 1831, which expressly provided
that there might be recovery if de-
fendant's act was 'with intent to
evade the law.' The cause now be-
fore us involves only the property
right of the original composer in his
copyright. The act in force when
this copyright was issued (U. S. Rev.
St. § 4952. as amended by Act March
3, 1905, 33 St. at L. 1000. c. 1432)
provides that the author of a musi-
cal composition, upon complying
with the provisions of the copyright
statute, shall have the sole liberty
of printing, publishing, and vending
the same. We are referred to no au-
thority, and know of no reason for
holding that the person to whom this
right is secured may not maintain it
by injunction against another person
who threatens to invade it." The
court below had taken the same view
[175] Fed. 875]. No authority is
cited in support of this rather ex-
traordinary decision, and it is be-
lieved none can be found. The au-
thorities are all the other way. This
decision gives a musical copyright
the scope and operation of a patent).
48. National Cloak, etc., Co. V.
Standard Mail Order Co., 191 Fed.
528; Dam v. Kirk la Shelle Co., 175
Fed. 902, 907, 99 CCA 392, 41 LRANS
1002, 20 AnnCas 1173 [aff 166 Fed.
589]; Sampson, etc., Cò. v. Seaver-
Radford Co., 140 Fed. 539, 72 CCA 55
[rev 134 Fed. 890]; Maxwell v. Good-
win, 93 Fed. 665; S. S. White Dental
Co. v. Sibley, 38 Fed. 751.

"It cannot be questioned that the second publisher, although he gives out exactly the same words as the first publisher, is, nevertheless, within his legal right, provided he resorts independently to the same originals that the first publisher 46. See infra §§ 426-428. went to. He may, indeed, even make 47. National Cloak, etc., Co. v. use of the same phraseology, either Standard Mail Order Co., 191 Fed. because the topic necessarily re- 528; George T. Bisel Co. v. Bender, quires it or through mere incidental 190 Fed. 205. And see cases supra coincidences of expression." Samp-277. son, etc., Co. v. Seaver-Radford Co., [a] "The true test of piracy or 140 Fed. 539, 541, 72 CCA 55 [rev not is to ascertain whether the de134 Fed. 890]. fendant has, in fact, used the plan, arrangements, and illustrations of the plaintiff, as the model of his own book, with colorable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials and common sources of knowledge, open to all men, and the resemblances are either accidental or arising from the nature of the subject. In other words, whether the defendant's book is, quoad hoc, a servile or evasive imitation of the plaintiff's work, or a bonâ fide original compilation from other or independent sources." Per Story, J., in Emerson v. Davies, 8 F. Cas. No. 4,436, 3 Story 768, 793 (which statement of the test of infringement has been many times quoted and applied in later cases particularly in cases involving compilations.

44. Johnson v. Donaldson, 3 Fed. 22. 24, 18 Blatchf. 287 (where Wallace, J., said: "Assuming the plaintiff to have been the artist and designer of the picture copyrighted by him, the defendant was not liable if he did not avail himself, directly or indirectly, of the plaintiff's production. A copyright secures the proprietor against the copying, by others, of the original work, but does not confer upon him a monopoly in

the intellectual conception which it expresses. An artist cannot acquire such an exclusive right to the conception embodied and expressed in his picture as to preclude others from the exercise of their own creative genius or artistic skill, or from availing themselves of any part of the general contribution of artistic production. The law of copyright originated in the recognition of the right of another to be protected in the manuscript which is the title of his literary property. This "rotection could not be adequate unless he was invested with the exclusive privilege of copying the manuscript, whether for sale or for publication. It does not rest upon any theory that the author has an exclusive property in his ideas, or in the words in which he has clothed them. If each of two persons should compose a poem identically alike, he who first composed it would have no priority of title over the other, nor would he acquire priority by first publishing it. The law of copyright would protect each in his own manuscript, but would not prevent either from using his own."); Corelli v. Gray, 29 T. L. R. 570.

common

§ 307 text and note 91).

See infra

[b] Rule applied.-In Roworth v. Wilkes, 1 Campb. 94, 99, which was among other things an action for pirating certain prints in a work on fencing, it appeared in evidence that three of the engravings of defendant represented figures in exactly the same attitudes as plaintiff's but disguised by different costumes. Defendant gave no evidence to explain the similitude or to repel the presumption which that necessarily caused, and while the verdict was for plaintiff, Lord Ellenborough said that it was to be considered whether there was "such a similitude and conformity between the prints, that the person who executed the one set must have used the others as a model. In that case he is a copyist of the main design. But if the similitude can be supposed to have arisen from accident; or necessarily, from the nature of the subject; or from the artist having sketched designs merely from reading the letterpress of the plaintiff's work, the defendant is not answerable.'

[c]

[a] Distinction between copyright and patent.—(1) "Copyright differs In this respect from patent right, which admits of no use of the patented thing without the consent or license of the patentee. Persons making, using, or vending to others to be used, the patented article are Discordant decision.-See guilty of infringing the letters-pat- Hein v. Harris, 183 Fed. 107, 108, ent, even though they may have sub- 105 CCA 399 [aff 175 Fed. 875] sequently invented the same thing (where the court said: "Defendant without any knowledge of the exist- contends that in order to infringe a ence of the letters-patent; but the copyright the defendant must have recomposition of the same book actually copied or pirated the prowithout copying, though not likely duction of the plaintiff, and not to occur, would not be an infringe- merely, while ignorant, have himself ment." Lawrence v. Dana, 14 F. Cas. produced substantially the same No. 8.136, 4 Cliff. 1, 80. (2) "Under thing. The case cited in support of

"It is undoubtedly true, as claimed by the defendant, that an author cannot by suggestion obtain exclusive control of a field of thought upon a particular subject. If the playwright in this case without the use of the story, and working independently, had constructed a play embracing its central idea, it may well be that he would not have infringed the copyright of the story." Dam v. Kirk la Shelle Co., supra.

[a] Rule applied. In a case involving the question of the infringement of an ingenious plan for advertising artificial teeth it appeared that plaintiff, a manufacturer of artificial teeth, had copyrighted and published charts showing illustrated sections of teeth (in connection with numbers) so arranged as to convey information respecting their character, size, shape, etc., and enabling purchasers to order what they needed without inspection. Defendant, also a manufacturer of artificial teeth, procured engraved illustrations of the teeth made by him, arranged in sections (accompanied by numbers), and printed them on charts; and thus conveyed to pur

49

51

copyrighted work, if unauthorized, constitutes an infringement." But an infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colorable alterations to disguise the piracy.52 Paraphrasing

copyright in another simply because there is a similarity between the two, if the similarity results from the fact that both works deal with the same subject, or have made use of common sources.50 [279] c. Sufficiency of Copying-(1) Reproduction and Paraphrasing. A literal reproduction of the whole, or of substantially the whole, of a chasers the same character of in- | goods. Can they not publish correct | Fed. 205; Glaser v. St. Elmo Co., 175 formation respecting his manufac-illustrations of them as adjuncts of ture as plaintiff's charts afforded. their sale? Ought they to be reIn holding that defendant was not liable to the charge of infringement Butler, J., in delivering the opinion of the court, said: "The defendant is not liable, unless he has copied'pirated' the plaintiff's charts, or some part of them. If he devised the same plan in ignorance of what the plaintiff had done, it is clear, we believe, that he has not infringed any privilege secured by the plaintiff. The proofs do not justify a conclusion that he has so copied. His own positive testimony that he has not, but that he worked out the scheme in ignorance of what the plaintiff had done, is not overborne by the circumstances which the plaintiff invokes to prove the contrary." S. S. White Dental Co. v. Sibley, 38 Fed. 751, 752.

49. McCarthy v. Adler, 227 Fed. 630; Gross v. Seligman, 212 Fed. 930, 129 CCA 450; Woodman v. LydiardPeterson Co., 192 Fed. 67 [aff 204 Fed. 921, 123 CCA 243, 205 Fed. 900. 126 CCA 434]; Da Prato Statuary Co. v. Giuliani Statuary Co., 189 Fed. 90; Maxwell v. Goodwin, 93 Fed. 665; Bullinger v. Mackey, 4 F. Cas. No. 2.127, 15 Blatchf. 550; Pike v. Nicholas, L. R. 5 Ch. 251; Toole v. Young, L. R. 9 Q. B. 523, 9 ERC 871; Wilkins v. Aikin, 17 Ves. Jr. 422, 34 Reprint 163.

[a] Maps and charts afford an illustration of this rule. See infra § 311.

strained from doing this because the
complainants, having done the same
thing, have copyrighted illustrations
which, while representing their own
goods, represent those of the defend-
ant also? It is clear that the books
of both parties are published and
used solely as means for advertise-
ment. To say that the defendant has
not the right to publish correct il-
lustrations of its goods must practi-
cally result in creating a monopoly.
in goods modeled on those designs,
in the complainants, and thus give
all the benefits of a patent upon
unpatented and unpatentable articles.
Sales of merchandise are made
largely by samples, and when the
articles are bulky, as in case of fur-
niture, illustrations are the only rep-
resentations that can be made to the
eye of the public at large; and it is
altogether likely that to withdraw
the right to make them from one of
the parties would put him out of the
field of competition. It does no ap-
pear to me that such results can be
accomplished in this way." Lamb v.
Grand Rapids School Furniture Co.,
39 Fed. 474, 475. (3) "In the case of
Lamb v. Grand Rapids School Furni-
ture Co., 39 Fed. 474 and which was
a case of a trade catalogue, and was
cited by the defendant, it did not
appear that the defendant's cuts were
copied from the plaintiff's cuts, and
the court assumed that defendant's
cuts were made from photographs of
its own stock." Da Prato Statuary
Co. v. Giuliani Statuary Co., 189 Fed.
90, 92.

one of

same

[c] Design suggested by adver-
tiser-Defendant company, a manu-
facturer of clothing, desiring to is-
sue a booklet advertising its prod-
ucts, through one of its members
submitted to two artists.
whom was complainant, the
general design for a picture to be
placed on the cover, leaving the de-
tails to the artists. Complainant
copyrighted his sketch, which
not accepted. The one accepted and
used was necessarily similar in gen-
eral design, but different in detail.
It was held: (1) That defendant's
picture did not infringe the copy-

was

[b] Illustrated trade catalogues. (1) "I am entirely in accord with defendant in the proposition that a manufacturer of unpatented articles cannot practically monopolize their sale by copyrighting a catalogue containing illustrations of them. From a comparison of the illustrations upon which complainant relies, the fair inference would seem to be that defendant makes some garments which are identical with complainant's and offers them for sale. If this be so, he cannot be deprived of the right to issue a catalogue of the garments he offers, with illustrations showing what they look like, provided that his illustrations are drawn from the garments themselves, and not copied from complainant's copy-right; and (2) that under the facts righted catalogue. The difficulty a court of equity would not subject with undertaking to decide the case defendant to the severe penalties of on demurrer is that we cannot be the copyright law for the use for sure how defendant's illustrations commercial purposes of a picture of were produced. Complainant might which it was to a large extent the be able to show that they were in originator. McCarthy v. Adler, 227 fact copied from its own, and not Fed. 630, 632 (where the court said: drawn with the garments as models." "Of necessity, with the general inNational Cloak, etc., Co. v. Standard structions that were given, and the Mail Order Co., 191 Fed. 528. (2) liberty to both of the artists in The complainants who were respect of detail, there was not very facturers of church furniture premuch room for general variation. pared and published a book of enThe scheme was the same scheme in gravings thereof, containing also a both instances, and did not originate price list, and procured the book to with either of the artists, but origibe copyrighted. Defendant, a manu- nated in the mind of this business facturer of school and church fur- man, who had his own ideas as to niture, manufactured goods from de- what would be effective for adversigns taken from the complainant's tising purposes. The carrying out illustrations, and also published a of the detail was a matter that one book containing illustrations of his goods with price list. Several of these illustrations bore a striking resemblance to those of the plainants, but defendant contended that its illustrations were in truth of his own goods, and that the simili- cause of the limited character, both tude of the illustrations resulted from the fact that the goods were alike. It was held that plaintiff's illustrations were not infringed. In delivering the opinion of the court. Severens, J., said: "The defendants

manu

com

may lawfully manufacture just such

Fed. 276; Edward Thompson Co. v. American Law Book Co., 130 Fed. 639 [aff 157 Fed. 1003 mem, 85 CCA 677 mem (app dism 216 U. S. 625 mem, 30 SCt 576 mem, 54 L. ed. 642 mem)]; Howell v. Miller, 91 Fed. 129, 33 CCA 407; Brightley v. Littleton, 47 Fed. 103; Johnson v. Donaldson, 3 Fed. 22, 18 Blatchf. 287; Emerson v. Davies, 8 F. Cas. No. 4.436. 3 Story 768; Walter v. Lane, [1900] A. Č. 539 (two independent reports of the same lecture); Pike v. Nicholas, L. R. 5 Ch. 251; Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109; Lucas v. Cooke, 13 Ch. D. 872; Moffatt & Paige, Ltd. v. George Gill & Sons, Ltd., 84 L. T. Rep. N. S. 452 [rev on other grounds 86 L. T. Rep. N. S. 465]; Schlesinger v. Bedford, 63 L. T. Rep. N. S. 762; De Berenger v. Wheble, 2 Stark. 548, 3 ECL 525.

"Each of these compositions had a common source, and it is the set

tled law in copyright that, where two men work independently from a common source and produce different results, neither infringes upon the other." McCarthy v. Adler, 227 Fed. 630, 632.

"Others are free to copy the original. They are not free to copy the copy." Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 249, 23 SCt 298, 47 L. ed. 460.

Compilations as an illustration of this rule see infra § 307 et seq.

Directory cases as an illustration of this rule see infra § 308. Art reproductions see infra §§ 324327. 51. G. & C. Merriam Co. v. United Dictionary Co., 146 Fed. 354, 76 CCA 470 [aff 208 U. S. 260, 28 SCt 290, 52 L. ed. 478].

[a] Photographic reprint. Where a book was copyrighted in the United States and Great Britain, it was held that the publication in the United States of a photographic reprint of the foreign edition was an infringement of the United States copyright. G. & C. Merriam v. United Dictionary Co., 146 Fed. 354, 76 CCA 470 [aff 208 U. S. 260, 28 SCt 290, 52 L. ed. 478].

Blatchf. 550;

52. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547 [aff 24 Fed. 636, 20 Fed. 441, 5 Fed. 726. 10 Biss. 139]; Hoffman v. Le Traunik, 209 Fed. 375; Maxwell v. Goodwin, 93 Fed. 665; Springer Lith. Co. v. Falk, 59 Fed. 707, 8 CCA 224 [app dism 17 SCt 998 mem, 41 L. ed. 1179 mem]; Bullinger V. Mackey, 4 F. Cas. No. 2,127, 15 Drury v. Ewing, 7 F. Cas. No. 4,095, 1 Bond 540; Emerson v. Davies, 8 F. Cas. No. 4,436, 3 Story 768; Greene v. Bishop, 10 F. Cas. No. 5,763, 1 Cliff. 186; Lawrence v. Cupples, 15 F. Cas. No. 8,135; Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1; Webb v. Powers, 29 F. Cas. No. 17,323, 2 Woodb. & M. 497; Pike v. Nicholas, L. R. 5 Ch. 251; Lewis v. Fullarton, 2 Beav. 6, 17 EngCh 6, 48 Reprint 1080; Roworth v. Wilkes, 1 Campb. 94; Trusler v. Murray, 1 East 362 note, 102 Reprint 140; Sayre Moore, 1 East 361 note b, 102 Rewould expect would be left to the print 139; Cary v. Longman, 1 East artist, and was left to the artist. 358, 102 Reprint 138, 7 ERC 78; MofFrom my point of view the differfatt & Paige, Ltd. v. George Gill & ence in the detail is substantial; but, Sons, Ltd., 86 L. T. Rep. Ñ. S. 465; even if it had been closer. I think Barfield v. Nicholson, 2 Sim. & St. 1, the result would be the same, be1 EngCh 1, 57 Reprint 245; Wilkins v. Aikin, 17 Ves. Jr. 422, 34 Reprint in space and in theme, of the subject-163; Longman v. Winchester, 16 Ves. matter to be treated").

50. McCarthy v. Adler. 227 Fed. 630; Woodman v. Lydiard-Peterson Co., 192 Fed. 67 [aff 204 Fed. 921. 123 CCA 243, 205 Fed. 900, 126 CCA 434]; George T. Bisel Co. v. Bender, 190

V.

Jr. 269, 33 Reprint 987; Matthewson v. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103; Jarrold v. Heywood, 18 Wkly. Rep. 279.

"As the owner of material possessions may assert his rights wher