is copying and an infringement,53 if carried to a In [§ 280] (2) Quantity and Quality of Matter Copied. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration.58 To ever 59. V. [§§ 279-280 constitute infringement it is not necessary that the whole or even a large portion of the work shall have been copied,59 and on the principle of de minimis non curat lex it is necessary that a material and substantial part of it shall have been copied,60 it being insufficient that mere words or lines have been abstracted.61 cise and definite rules can be stated.62 If so much Between these extremes no preis taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropri ated by another, that is sufficient in point of law to constitute a piracy. 63 rather than quantity and is to be determined by the The question is one of quality 223 Macmillan Co. v. King, pages constitutes copying a sub- Hoffman v. Le Traunik, 209 or in whatever disguise his | Francis, 5 B. & Ald. 737, 7 ECL 402, | book of two hundred and ninety-six property is found, so the author of a literary composition may claim it 106 Reprint 1361") as his own in whatever language or form of words it can be identified as his production. The true test of piracy, then, is not whether a composition is copied in the same langauge or the exact words of the original, but whether, in substance, it is reproduced; not whole, but a material part, is taken. whether the whether the substance of the work The controlling question is is taken without authority." well v. Goodwin, 93 Fed. 665, 666 Max(where this rule instruction to the jury). was given as Rule applied see infra §§ 297-330. Meccano v. Wagner, 234 Fed. 912; West Pub. Co. Thompson Co., 176 Fed. 833, 100 CCA V. Edward 303 [mod 169 Fed. 833]. supra § 276. See also inwell 53. an "Paraphrasing constitutes fringement of a copyright as as actual copying copyrighted matter.' Meccano v. Wagner, 234 Fed. 912, 922 [foll West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 838, 100 CCA 303]. 54. See infra 280. 55. Springer Lith. Co. v. Falk, 59 Fed. 707, 8 CCA 224 [app dism 17 SCt 998 mem, 41 L. ed. 1179 mem]; Roworth v. Wilkes, 1 Campb. 94, 98 (where Lord Ellenborough said that "it is enough that the publication complained of is in substance copy, whereby a work vested in another is prejudiced"). a 56. West Pub. Co. Co-op. Pub. Co.. 79 Fed. 756, 762, 25 v. Lawyers' CCA 648, 35 LRA 400 (which was a suit brought for the infringement of complainant's copyright in syllabi of law reports, where Lathe combe, J., said: "It is not the law that a copyrighted syllabus can be infringed only by a reproduction of its original language. fair appropriation of the labor of It is the unthe original compiler that constitutes the offense. Identity of lan "An infringement may result in supra. com [a] Rule applied. "The 60. Chatterton v. Cave, 3 App. Cas. 483; guage will often prove that the offense was committed, but it is not the sole proof; and, when the offense is proved, relief will be af-lief, etc., Assoc., 3 Hawaii Fed. 388; forded, irrespective of any similarity of language. For example, if, in a case like this, defendant's editors should one and all testify that they made up their digest from complainant's syllabi, so as to save the time and trouble necessarily involved in an independent examination of each opinion, there can be no doubt that such digest would be held to fringe, although the work were so cleverly done that no identity of language could be found in a single paragraph"). in 57. Maxwell v. Goodwin, 93 Fed. 665. Proof of copying or paraphrasing see infra §§ 426-428. 58. Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109. 129 Lindley, L. J., said: (where copying and the degree of resem"The extent of blance between the original and the copy are always most material, as was pointed out long ago in West v. 572 [aff 2 C. P. D. 42 (aff 3 App. [a] Substantial print 1110 (where Lord Cottenham 62. Bramwell v. Halcomb, 3 Myl. & C. 737, 738, 14 EngCh 737, 40 ReOne writer might take all the vital said: "When it comes to a question of quantity, it must be very vague. might be but a small proportion of part of another's book, though it the book in quantity. It is not only looked to. quantity but value that is always See also Saunders v. Smith, 3 Myl. It is useless to refer to any particular cases as to quantity"). & C. 711, 14 EngCh 711, 40 Reprint Exch. 21 (both to same effect). 1100; D'Almaine v. Boosey, 4 L. J. on 63. Meccano v. Wagner, 234 Fed. 912; White v. Bender, 185 Fed. 921; West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod Maxwell v. Goodwin, 93 grounds 176 Fed. 833, 100 CCA 303]: other Simms v. Stanton, 75 Fed. 6; HarFed. 665; per V. No. 4,901, 2 Story 100; Shoppell, 26 Fed. 325; Folsom v. Marsh, 9 F. Cas. Blatchf. 431; Reed v. Fed. 519, 23 Holliday, 19 Bishop, 10 F. Cas. No. 5,768. 1 Cliff. Greene v. 186; Lawrence v. Dana, 14 F. Cas. No. 8,136, 4 Cliff. 1; Richardson v. Miller, 20 F. Cas. No. 11,791; Webb Ager v. Peninsular, etc., Nav. Co., 26 v. Powers, 29 F. Cas. No. 17,323; Ch. D. 637; Cox v. Land, etc., Journal Co., L. R. 9 Eq. 324; Scott v. Pitman, 26 Ch. D. 374; Bradbury v. Stanford, L. R. 3 Eq. 718; Nicols v. Hotten, L. R. 8 Exch. 1; Sweet v. Benning, 16 C. B. 459, 81 ECL 459. 139 Reprint 838; Bohn v. Bogue, 10 Jur. 420; Bramwell v. Myl. & C. 737, 14 EngCh 737. 40 ReHalcomb, 3 385, 3 EngCh 385, 38 Reprint 380; print 1110; Saunders V. Myl. & C. 711, 14 EngCh 711, 40 ReSmith, 3 print 1100; Mawman v. Tegg, 2 Russ. Campbell v. Scott, 11 EngCh 31, 59 Reprint 784; Wilkins Sim. 31, 34 v. Aikin, 17 Ves. Jr. 422, 34 Reprint 163; Matthewson Ves. Jr. 270, 33 Reprint 103; Smith V. Stockdale, 12 v. Chatto, 23 Wkly. Rep. 290. [a] "The true test of piracy, or not, is laid down by Mr. Justice Story in Emerson v. Davies, 8 F. Cas. No. 4,436, 3 Story 768: It has been truly said, that the subject of both of these works is of such a nature that there must be close resemblances between them. But the real question dental and undesigned. resemblances on this point is, not whether such exist, but these resemblances are purely acciwhether rowed, because arising from common and unborthors, and the use of materials open sources accessible to both the auequally to both; whether, in fact, the defendant Davies used the plaintiff's work as his model, and imitated and copied that, and did not draw from such common sources or common materials.'" Meccano v. Wagner, 234 Fed. 912. 922. [b] The principle of the cases is from a that, "where one man for , same title, page and note number 64 character of the work and the relative value of the material taken. It has been said that in deciding questions of this sort the court must look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, diminish the profits, or supersede the objects of the original work.65 If the matter taken is claimed to be taken as of right a very small amount will suffice.66 The copyright of a work may not extend to certain parts or features of it, and in such cases it is not piracy to copy such uncopyrighted parts or features." 69 [281] (3) Proportion of Defendant's Work Copied from Plaintiff's Work. It has been said that the test of infringement is not so much what proportion of plaintiff's work has been taken, but rather what portion of defendant's work is plaintiff's.70 But this is not a safe test in all cases. profit puts into his work an essential part of another man's work, from which that other may still derive profit, or from which, but for the act of the first, he might have derived profit, there is evidence of a piracy." Per Kelley, C. B., in Bradbury v. Hotten, L. R. 8 Exch. 1, 6. [c] Publication of farce in magazine.-Defendant secured a copy of an unpublished farce by having the words taken down from the mouths of the actors, published the first act in one issue of a magazine, and gave notice that the remaining act would be published in the next issue. An injunction was granted, the court saying: "It was said to be only a small part of the Magazine, and therefore the Court should not interfere. That is not the true question; but. What proportion the part published in the Magazine bears to the whole work out of which it is taken? Here it is avowed, and declared to be half of the work, one whole act; and the defendants engage to publish the other half. This is not an abridgment, but the work itself, and not like the case of Dodsley v. Kinnersley, Ambl. 403, 27 Reprint 270 which was only an extract." Macklin v. Richardson, Ambl. 694, 696, 27 Reprint 451, 7 ERC 66. [d] Any material unfair use.An unfair saving of labor and expense by the appropriation of a Copyrighted work, animo furandi, is ground for injunction against the infringing publication, if the unfair use permeates the work to any material extent. West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 3031. Extracts and quotations see infra § 300. 64. Social Register Assoc. v. Murphy, 128 Fed. 116; Leslie v. Young, [1894] A. C. 335; Cooper v. Stephens, 18951 1 Ch. 567; Cate v. Devon, etc., Newspaper Co., 40 Ch. D. 500; Trade Auxiliary Co. v. Middlesborough, etc., Protection Assoc., 40 Ch. D. 425; Simms v. Stanton, 75 Fed. 6; Farmer V. Calvert Lith., etc., Co., 8 F. Cas. No. 4,651, 1 Flipp. 228; Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100; Gray v. Russell, 10 F. Cas. No. 5.728, 1 Story 11; Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1; Storey V. Holcombe, 23 F. Cas. No. 13,497, 4 McLean 306; Scott v. Stanford, L. R. 3 Eq. 718; Bradbury v. Hotten, L. R. 8 Exch. 1; Murray v. Bogue, 1 Drew. 353. 61 Reprint 487; Cary v. Kearsley. 4 Esp. 168; Tinsley v. Lacy. 1 Hem. & M. 747, 71 Reprint 327; Bramwell V. Holcomb, 3 Myl. & C. 737, 14 Eng Ch 737, 40 Reprint 1110; Saunders v. Smith, 3 Myl. & C. 711, 14 EngCh 711, 40 Reprint 1100; Neale v. Harmer, 13 T. L. R. 209; Kelly v. Hooper, 1 Y. & Coll. 197, 20 EngCh 197, 62 Reprint 852. 71 It is ordinarily immaterial whether the piracy is committed by making a simple reprint without any considerable additions," or by incorporating the copied and pirated matter in a larger work.' 72 Thus the incorporation in a large encyclopedia of matter taken from another copyrighted work is just as much an infringement of the latter's copyright as if it were published in a single volume.73 [§ 282] (4) (4) Competition between Respective Works. To constitute an infringement it is not necessary that the later work should be calculated to serve as a substitute for the original work," or that there should be any actual or possible competition between the respective works in the market.75 Want of competition does not affect the question of infringement, but only the measure of damages.78 The copyright proprietor is entitled to any lawful use of his property whereby he may get a profit out of it." The potential right to make or license which the borrowed passages may bear the whole work." Per Wood, V. C., in Tinsley v. Lacy, 1 Hem. & M. 747, 753, 71 Reprint 327. V. 65. Per Story, J., in Folsom Marsh, 9 F. Cas. No. 4,901. 2 Story 100 [quot with appr by Vice-Chancellor Wood in Scott v. Stanford, L. R. 3 Eq. 718]. 66. Čate v. Devon, etc., Newspaper Co., 40 Ch. D. 500; Trade Auxiliary Co. v. Middlesborough, etc., Protection Assoc., 40 Ch. D. 425. 67. 69. Mutual Adv. Co. v. Refo, 76 Fed. 961 (mode of advertising with coupons). Compiled matter see infra § 307. Title of work see supra §§ 143, 275. 70. Per Kekewich, J., in Neale v. Harmer, 13 T. L. R. 209. [a] Rule applied.-"Although in this case there is only one drawing taken from each of two books of the Plaintiffs, and three from another book, yet the total makes up fivesixths of all the drawings of carriages in the carriage-makers' advertisements inserted in the publication complained of, I hold, therefore, that this ground of defence also fails." Cooper v. Stephens, [1895] 1 Ch. 567, 572. [b] Taking three out of three hundred architectural drawings from a large work on "The Abbey Church of St. Alban," and publishing them in a magazine article on the same subject, where they constituted the only architectural illustrations in the article, is an infringement. Neale v. Harmer, 13 T. L. R. 209. 71. Additions and improvements see infra § 283. 72. Gray v. Russell, 14 F. Cas. No. 5,728, 1 Story 11; Roworth v. Wilkes, 1 Campb. 94 (where it was held that if an article in a general compilation of literature and science copies so much of a book as to serve as a substitute for it it is piracy); Maxwell v. Somerton, 30 L. T. Rep. N. S. 11 (where defendant reprinted in his newspaper an entire story contained in plaintiff's magazine); Mawman v. Tegg. 3 Russ. 385, 3 EngCh 385, 38 Reprint 380 (where the reprint of articles that had appeared in an encyclopedia was held to be piracy). Campbell v. Scott, 11 Sim. 31, 34 Eng Ch 31, 59 Reprint 784. 73. Gray v. Russell, 10 F. Cas. No. 5,728, 1 Story 11. "It is of no consequence in what form the works of another are used; whether it be by a simple reprint, or by incorporating the whole or a large portion thereof in some larger work. Thus if, in one of the large encyclopædias of the present day, the whole or a large portion of a scientific treatise of another author should be incorporated, it would be just as much a piracy upon the copyright as [a] "The quality of the piracy is if it were published in a single volmore important than the proportion ume." Gray v. Russell, 10 F. Čas. No. 5,728, 1 Story 11. [a] Syllabi of law reports (1) copyrighted in small pamphlet form may be infringed by copying or paraphrasing them and incorporating the result in a large legal digest of decisions. West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 25 LRA 441]. (2) Such syllabi may also be infringed by incorporating them in a large legal encyclopedia issued in many volumes. West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 833]. 74. Hartford Printing Co. v. Hartford Directory, etc., Co., 146 Fed. 332; Reed v. Holliday, 19 Fed. 325; Bohn v. Bogue, 10 Jur. 420; Sweet v. Shaw, 1 Jur. 917. 75. H. Blacklock & Co., Ltd. v. Pearson, Ltd., [1915] 2 Ch. 376; Weatherby V. International Horse Agency, etc., Ltd., [1910] 2 Ch. 297; Hanfstaengl v. Smith, [1905] 1 Ch. 519; Nicols v. Pitman, 26 Ch. D. 374. "In order to avoid misunderstanding, I will observe that I do not think that the competition test is necessarily conclusive. I agree that if the Defendants had copied the Plaintiff's pictures they would have infringed his rights, even although the use made by the Defendants of such copies could in no way compete with the sale of the Plaintiff's pictures. This was the case in Hanfstaengl Art Pub. Co. v. Holloway, [1893] 2 Q. B. 1, where copies of the Plaintiff's pictures were only used by being put on pill-boxes, but were nevertheless held to be infringements of his rights. Again, unauthorized sketches of pictures made on purpose to convey, and, in fact, conveying, tolerably correct ideas of them would, I apprehend, be infringements of the copy-. rights in them, although the sketches might not compete with the pictures or with any copies of them which their authors or their assigns might desire to make or sanction. But where copying a picture never enters the head of a person who is said to have copied it or to have reproduced its design, where the question is whether a sketch by such a person is or is not a copy or reproduction, then the impossibility of injury by competition may, I think, be fairly considered. The amusing sketches in Punch of the pictures in the Royal Academy are not, in my opinion, infringements of the copyrights in those pictures, although probably made from the pictures themselves. The application of similar principles to the different facts of this leads me to a similar conclusion. In neither case is there any piracy, actual or intended." Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109, 130 (per Lindley, L. J.). case 76. Falk v. Donaldson, 57 Fed. 32; H. Blacklock & Co., Ltd. v. Pearson, Ltd., [1915] 2_Ch. 376. 77. Social Register Assoc. v. Mur such use of the work as defendant has made con- 85 a 78. Weatherby V. International Horse Agency, etc., Ltd., [1910] 2 Ch. 297; Bradbury v. Hotten, L. R. 8 Exch. 1. "An author is entitled not only to the uses which he does make of his work, but also to the uses which he might make of it." MacGillivray Copyright p 118. [a] Rule applied.—(1) "It was much pressed upon me by the learned counsel for the Defendants, that these illustrations published by the Defendants in no way compete with the copies of the pictures authorized by the Plaintiff. If this contention be well founded, then the logical conclusion would seem to be that the owner of the copyright of a picture who had never permitted, and did not intend to permit, the picture to be copied, could not restrain any one from making a copy of it. This cannot have been the intention of the Legislature. The answer to that argument appears to me to be that the illustrations constitute a violation of the exclusive right conferred by the statute of 1862; that, in the language of Kelly, C. B., in Bradbury v. Hotten, L. R. 8 Exch. 1, 6, the Defendants are thereby applying for their own use and for their own profit what otherwise the Plaintiff might have turned, and possibly still may turn, to a profitable account. my opinion, therefore, if these cases be governed exclusively by the English law, the Plaintiff is entitled to an injunction in each." Hanfstaengl V. Empire Palace, [1894] 3 Ch. 109, 117 (per Stirling, J.). (2) "Then it is said that the real and only test as to whether or not the defendants have made an unfair use of vol. 21 of the Stud Book lies in the answer to the question whether there will be any competition between such volume and the defendants' book. It is no doubt true that where, as is often the case, it is a difficult matter to determine whether in preparing one publication an unfair use has .been made of another, the nature of the two publications and the likelihood or unlikelihood of their entering into competition with each other is not only a relevant but may be even the determining factor of the case. In But, in my opinion, an unfair use may be made of one book in the preparation of another, even if there is no likelihood of competition between the former and the latter. After all copyright is property, and an action to restrain the infringement of a right of property will lie even if no damage be shewn. In the present case there may not be much probability that any one will buy the defendants' book instead of vol. 21 of the Stud Book, but the fact remains that in preparing this book the defendants have utilized, wholesale and without permission, lists prepared by the plaintiffs at much trouble and expense. In so doing they have appropriated the result of this labour and expense to their own use, and even if they have injured the plaintiffs in no other way, they have at any rate deprived them of the ad .87 stantial competition. Nevertheless the cases fre- vantage, which their copyright con- 90 are 87. Gilmore v. Anderson, 38 Fed. 846 ("Life of James A. Garfield"). 88. Hill v. Whalen, 220 Fed. 359; West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 833]; Social Register Assoc. v. Murphy, 128 Fed. 116; Hanfstaengl v. Smith, [1905] 1 Ch. 519; Cooper v. Stephens, [1895] 1 Ch. 567. [a] Injury to sale of original—(1) A test frequently applied, is whether the extracts as used are likely to injure the sale of the original. Harper v. Shoppell, 26 Fed. 519, 23 Blatchf 431. (2) One test to determine [b] Directory for previous year. whether a parody is a mere criticism "Defendant argues that the sale of or a reproduction is whether the its 1905 directory could not, in the parody given is such as will materinature of things, affect the sale of ally reduce the demand for the origicomplainant's copyrighted 1904 dinal by partially satisfying that derectory. This may be so, but such mand. Hill v. Whalen, 220 Fed. 359. sales were nevertheless injurious to(3) "When I find in addition that the complainant, because defendant availed itself of the labor expended by complainant on the copyright, and has, by such unfair use, lessened its own labor, and since we cannot know how extensive the piracy was, it is only ordinarily fair that defendant should account to the complainant for any profits which it made. It is not perceived how defendant materially injured the sale of the 1904 directory, but it took advantage of complainant's work on the 1904 directory to compile its 1905 directory, and that device ought to be accounted for. The rights secured to the complainant by its copyright lost all substantial value after defendant had invaded them for the advantage of its 1905 directory." Hartford Printing Co. v. Hartford Directory, etc., Co., 146 Fed. 332, 335. 79. See infra § 326. 80. Falk v. Donaldson, 57 Fed. 32. See also infra § 328. 81. Falk v. Howell, 37 Fed. 202 (photograph of "Yum Yum" illustrating song from "Mikado"). Compare Dicks v. Brooks, 15 Ch. D. 22 [appr Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109] (where a Berlin woolwork pattern was held not an infringement of an engraving). 82. Hanfstaengl Art Pub. Co. v. Holloway, [1893] 2 Q. B. 1 (picture infringed by label on pill boxes); Hanfstaengl v. Smith, [1905] 1 Ch. 519 (large oil painting called "Nature's Mirror" infringed by miniature reproduction, the size of an English halfpenny, on advertising page of a magazine). [a] Damages. The owner of a design under the Copyright Act of 1862 sued a firm which had inserted the design in a newspaper as a pictorial advertisement for their goods, for damages and penalties. Semble that he was entitled to damages and also to penalties. Green v. Irish Independent Co., [1899] 1 Ir. 386. 83. Reed v. Holliday, 19 Fed. 325. 84. West Pub. Co. v. Lawyers' Coop. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 25 LRA 4411: Sweet v. Benning. 16 C. B. 459. 81 ECL 459, 139 Reprint 838. 85. West Pub. Co. V. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 833]. 86. Hodges v. Welsh, 2 Ir. Eq. 266; Sweet v. Shaw, 3 Jur. 217. Arthur is underselling the Plaintiff, I think his case by no means bettered. He says in effect to the plaintiff, I avail myself of your labour to shew to the public that I can supply them with the same article as you do; and inasmuch as this has not cost me any time, thought or exertion, I can afford to supply the article on cheaper terms,' thus injuring the Plaintiff by means supplied by himself." Hotten v. Arthur, 1 Hem. & M. 603, 610, 71 Reprint 264. 89. See MacGillivray Copyright p 110. 90. West Pub. Co. V. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 833]; Sampson, etc., Co. v. Seaver-Radford Co., 140 Fed. 539, 72 CCA 55 [rev 134 Fed. 890]; Weatherby V. International Horse Agency, etc., Ltd., [1910] 2 [a] Illustration.-"Instances may [§ 283] (5) Improvements and Additions. There are dicta to be found in some of the earlier cases to the effect that a subsequent writer may use the works of a previous writer if improvements, corrections, or additions are made.92 The cases holding that a bona fide abridgment is not an infringement proceed on this view.93 But this is not the law. It is of no importance that a work infringing on prior copyrighted work is an improvement on the earlier work or contains additional information.94 This no more entitles one to take to himself and publish the matter covered by another's copyright than does the fact that a second inventor has made an improvement on a patented machine give him the right to use such machine during the life of the first patent.95 [ 284] (6) Acknowledgment of Source. The fact that an infringer acknowledges the source from which the appropriated matter was derived has no bearing on the question of infringement; while the acknowledgment shows that he did not intend to pass as his own work the work of another, it does V. 92. Sayre v. Moore, 1 East 361 note. 102 Reprint 139; Cary V. Kearsley, 4 Esp. 168; Martin Wright, 6 Sim. 297, 9 EngCh 297, 58 Reprint 605; Matthewson v. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103. "I admit, no man can monopolize such subjects as the English Channel, the Island of St. Domingo, or the events of the world; and every man may take what is useful from the original work; improve, add, and give to the public the whole, comprising the original work, with the additions and improvements; and in such case there is no invasion of any right. In the case of Patterson's Road-Book, Cary v. Longman, 1 East 358, 102 Reprint 138, 7 ERC 78 a the roads were there; the distances the same: all these things must be the same. Error cannot be introduced for the sake of originality. But Cary succeeded upon this point; whether the one was a copy of the other; or, the roads, and every memorable place in England, being open to both parties, the one had made use of the other's work, as information, which he was to add to, or improve; not to make a servile copy. It turned out in these cases, that the very errors were copied. The charts, representing twenty-five fathoms water where there was dry land, would have wrecked the mariner. In the Road-Book, where Mr. Justice Grose's beautiful seat, The Priory, is noticed, an error in printing his name was exactly copied. This, occurring in several instances, was so decisive, that the judgment of the Court was, that the one work was a Matthewson v. copy of the other." Stockdale. 12 Ves. Jr. 270, 275, 33 Reprint 103. [a] Late erroneous dictum.-This idea has cropped up in a modern case where the court refers to the principle that there is no infringement if such mental labor is bestowed on what is taken as to produce an original result. Glyn v. Western Feature Film Co., [1916] W. N. (pt. II) 5. 305. V. 93. Abridgments see infra §§ 304, 94. Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055; Bracken v. Rosenthal, 151 Fed. 136; Williams V. Smythe. 110 Fed. 961; Ladd Oxnard, 75 Fed. 703; Lawrence V. Dana, 5 F. Cas. No. 8,136, 4 Cliff. 1; Drury v. Ewing, 7 F. Cas. No. 4.095, 1 Bond 540; Gray v. Russell, 10 F. Cas. No. 5,728, 1 Story 11; Pike V. Nicholas, L. R. 5 Ch. 251, 260 note; Boosey v. Fairlie. 7 Ch. D. 301; Scott v. Stanford, L. R. 3 Eq. 718; Moffatt & Paige, Ltd. v. George Gill & Sons, Ltd. 86 L. T. Rep. N. S. 465; Cary v. Faden, 5 Ves. Jr. 24, 31 Reprint 453; Cartwright v. Wharton, 25 Ont. L. not relieve him from legal liability.96 [§ 285] (7) Indirect Copying. The exclusive right to multiply copies is violated by either a direct or an indirect copying.97 For copyright purposes, a copy of a copy is a copy of the original.98 Thus where a novel was founded on a copyrighted drama, an unauthorized dramatization of the novel is an infringement of the copyright on the original drama.99 A copyright on a painting is infringed by copying lithographic or other copies of such painting. A book is infringed by retranslating a translation of it. A copyright on law reports covering the syllabi is infringed by copying such syllabi from digests in which they have been compiled and arranged as an index to the reports. A copy of a piracy is an infringement of the original. It is no defense that the pirate, in such cases, did not know what works he was indirectly copying, or did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. An opera is infringed by an independently made orchestration of former copies. See supra § 276. 357, 20 OntWR 853, 1 DomLR 392; Frowde V. Parrish, 27 Ont. 526; Beauchemin v. Cadieux, 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. C. 370]. 99. Shook v. Rankin, 21 F. Cas. No. 12,805 ("The Two Orphans"); Toole v. Youny, L. R. 9 Q. B. 523, 9 ERC 871; Boosey v. Fairlie, 7 Ch. "It is clear that the infringer of a D. 301; Reade v. Conquest, 11 C. B. copyrighted book cannot escape lia- N. S. 479, 103 ECL 479, 142 Reprint bility by mixing original matter of 883 (notwithstanding it did not inhis own with the matter pirated, and fringe the copyright on the novel unit should be equally clear that a der the law as it then was in Engphotographer of a piece of copy-land); Reade v. Lacy, 1 Johns. & H. righted statuary cannot say that because his picture contains some of his own talent he is any the less an infringer of the ideas he has taken from the statuary." Bracken V. Rosenthal, 151 Fed. 136, 137. [a] "The mistake of the older view of infringement in looking more to the value of the work done by the plagiarist than to the value of the material taken" is spoken of by Mr. MacGillivray. MacGillivray Copyright pp 110, 112. 95. Reed v. Holliday, 19 Fed. 325. See also Patents [30 Cyc 987]. 96. Pike v. Nicholas, L. R. 5 Ch. 251; Walter v. Steinkopff, [1892] 3 Ch. 489; Scott v. Stanford, L. R. 3 Eq. 718; Bahn v. Bogue, 10 Jur. 420. "A man cannot justify the taking what he has no right to take by stating whence he has taken it, though he may thereby avoid the additional dishonesty of passing off as the product of his own labour what really is cribbed from another. In Pike v. Nicholas, L. R. 5 Ch. 251, 260 note, the learned Judge, ViceChancellor James, says: "The Plaintiff has a right to say that no one is to be permitted, whether with without acknowledgment, to take a material and substantial portion of his work, of his argument, his illustrations, his authorities, for the purpose of making or improving a rival publication.'" Walter v. Steinkopff, [1892] 3 Ch. 489, 497. or 97. Gross v. Seligman, 212 Fed. 930, 129 CCA 450; Springer Lith. Co. v. Falk, 59 Fed. 707, 8 CCA 224 [app dism 17 SCt 998 mem, 41 L. ed. 1179 mem]; Gilmore v. Anderson, 38 Fed. 846; Schumacher v. Schwencke, 30 Fed. 690; Cate v. Devon, etc., Newspaper Co., 40 Ch. D. 500; Reade v. Conquest, 11 C. B. N. S. 479, 103 ECL 479, 142 Reprint 883; Murray v. Bogue, 1 Drew. 353, 61 Reprint 487; Reade v. Lacy, 1 Johns. & H. 524. 70 Reprint 853; Schlesinger v. Turner. 63 L. T. Rep. N. S. 764: Life Pub. Co. v. Rose Pub. Co.. 12 Ont. L. 386, 8 Ont. L. 28, 7 OntWR 337. 98. Toole v. Young, L. R. 9 Q. B. 523. 9 ERC 871: Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 8 Ont WR 28. 7 OntWR 337. [a] But the converse is not true; a copy of the original is not a copy 524, 70 Reprint 853; Schlesinger v. Turner, 63 L. T. Rep. N. S. 764. V. were not or 1. Schumacher v. Schwencke, 30 Fed. 690, 691 (where defendant never saw the original painting. but the lithographs of it which he copied were published by plaintiff with the of required notice copyright, although they separately copyrighted as prints, as they might have been. Coxe, J., said: "They have copied the painting. It is immaterial how this was accomplished, whether directly indirectly"); Toole v. Youny, L. R. 9 Q. B. 523, 9 ERC 871; Turner v. Robinson, 10 Ir. Ch. 510 [aff 10 Ir. Ch. 121]. Contra Champney Haag, 121 Fed. 944 (holding that, where illustrations published by defendant, which were alleged to constitute an infringement of the copyright on plaintiff's painting, were reproductions of a copyrighted photograh of such painting. and not of the painting, such illustrations constituted an infringement of the copyright on the photographs the copyright of only, and not on plaintiff's painting. This decision seems unsound. There is no legal or logical difficulty in holding both copyrights infringed-the photograph by the direct copying and painting by indirect copying). Indirect copying of artistic works see infra § 327. 61 Reprint 487. 176 3. West Pub. Co. V. Edward Thompson Co., Fed. 833, 100 CCA 303 [mod 169 Fed. 833]. 4. Stevenson v. Fox, 226 Fed. 990; American Press Assoc. V. Daily Story Pub. Co., 120 Fed. 766, 57 CCĂ 70, 66 LRA 444 [app dism 193 U. S. 675. 24 SCt 852, 48 L. ed. 842] (where a licensee violated the conditions of the license by publishing without notice of copyright, and defendant copied from such publication in ignorance of the copyright); Gilmore v. Anderson. 38 Fed. 846. [a] Previous use by others.-It is no defense that some of the appropriated parts had been previously used by others, from whose works they were taken by defendant. Gilmore v. Anderson, 58 Fed. 846. 5. American Press Assoc. V. Daily Story Pub. Co., 120 Fed. 766, 57 CCA 70, 66 LRA 444 [app dism 193 U. S. 675, 24 SCt 852, 48 L. ed. to an action for infringement. 32 The author's property is absolute when perfected by copyright, and the intent or purpose of an invasion is nowhere made an excuse for it.33 But proof of the animus furandi aids the inference of piratical copying and rebuts a claim of fair use,34 while evidence of innocent intention may have a bearing on the question of fair use. 85 A mere intention to infringe will not, without consummation of such intent by the production of an infringing copy, constitute an actual infringement,36 although preparations to carry out such intent may afford ground for injunction.37 Guilty knowledge or intent is essential to liability for contributory infringement,38 and under former statutes it was sometimes necessary to make one liable for forfeitures and penalties.39 It is of source from which they are derived. I staengl v. Empire But if, in effect, the great bulk of Ch. 109, 120. the Plaintiff's publication-a large and vital portion of his work and labour-has been appropriated and published in a form which will materially injure his copyright, honest intention on the part of the appropriator will not suffice, as the Court can only look at the result, and not at the intention in the man's mind at the time of doing the act complained of, and he must be presumed to intend all that the publication of his work effects." Per Sir W. Page Wood, V. C., in Scott v. Stanford, L. R. 3 Eq. 718, 723. mere [a] The belief that consent has been obtained is no defense to an action for infringement, although it is ground for the infliction of a merely nominal penalty. 3 Q. B. 387. Ex p. Beal, L. R. [§§ 289-290 course necessary to render one criminally liable under the penal provisions of the law, and want of knowledge of infringement limits the damages recoverable in cases of infringement by means of moving pictures." Under the present English statute guilty knowledge is essential to certain indirect or contributory infringements, as was also true under prior statutes.* 43 46 "The intention to pirate is not "If A takes the property of B the 42 [§ 290] 7. Publication, Sale, and Distribution of Copies-a. In General. A copyright secures to its proprietor the exclusive right to publish, copy, and vend the copyrighted work." This right is violated by any unauthorized sale or distribution of copies of the copyrighted work.45. It is immaterial that the copies are distributed gratuitously and not sold Palace, [1894] 3 for profit, or that the distribution is to a limited for hire, or by way of trade exposes or offers for sale or hire; or (b) distributes either for the nurnose copyright; or (c) by way of trade affect prejudicially the owner of the of trade or to such an extent as to for sale or hire into any part of exhibits in public; or (d) imports this Act extends, any work which to His Majesty's dominions to which his knowledge infringes copyright or would infringe copyright if it had been made within the part of His Illustration-"I am unable to Majesty's dominions in or into which believe that the defendant's use of for sale or hire, distribution, exthe sale or hiring, exposure, offering ment of the copyright because he is the outlines is any the less infringe- hibition or importation took place. teaching the contents of the book, a teacher, because he uses them in because he might lecture upon the permits a theatre or other place of (3) Copyright in a work shall also be deemed to be infringed by any who for his private profit contents of have taken their own notes of his without the the book without fringing, or because his pupils might performance in public of the work in- entertainment to lectures without infringing." be used for the millan Co. v. King, 223 Fed. 862, 867. Macconsent of of the copyright, unless he was not the owner 912; Reade v. Lacy, 1 Johns. & H. would be an infringment of copy34. Meccano v. Wagner, 234 Fed. for suspecting, that the performance aware, and had no reasonable ground 524, 70 Reprint 853; Jarrold v. Houl-right"). ston, 3 Kay & J. 708, 69 1294; Spiers v. Brown. 6 Wkly. Rep. Ch. D. 501; Leader v. Strange, 2 Reprint 43. Cooper V. 352; Beauchemin v. Cadieux, 10 Que. C. & K. 1010, 61 ECL 1010: Colburn Whittingham, "Defendant would have the court 543, 67 Reprint 224. Simms, 2 Hare 543, 24 EngCh consider the alleged acts of unfair competition defendant's Manuals alleged and proved. alone as if they were apart from the [a] [b] The result is the true test of the act. and full acknowledgment of the original, and the absence of any dishonest intention will not excuse the appropriator where the effect of his appropriation is of necessity to injure and supersede the sale of the original work. Scott L. R. 3 Eq. 718. v. Stanford, [c] Instructions to employees.-Q. B. 255. In an action for infringement of copyright, it was no defense that defendant instructed its editors to avoid the use of copyrighted material, if, in spite of such instructions, a greater or less use thereof. West Pub. Co. v. Edward was made Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]. 32. Criminal prosecution for in- such a use will be deemed in law a perceive how the which extracts were made. can bear upon the question. what effect must the extracts have The inquiry is, upon the original work. der it less valuable by superseding If they renits use. in any degree, the right of the author is infringed: and it can be of no importance to know with what intent this was done"); Hanf a were made Mec dealt with as such; nevertheless, the 330. 37. 330. 38. 39. 40. 41. 42. Copyright Act. 1911 (1 & 2 Geo. V c 46 § 2 (2), (3)) (which read as follows: "(2) Copyright in a work by any person who-(a) sells or lets shall also be deemed to be infringed See supra § 264. 45. Macmillan Co. v. Fed. 862; Warne v. Seebohm, 39 Ch. King, 223 D. 73, 7 ERC 98. [a] Sale of lawful copies.In the absence of any contract, condition, or provision for forfeiture, a sale of fringement of the copyright. a lawfully printed copy is not an in77 CCA 607, 15 LRANS 766 [aff 210 Merrill Co. v. Straus, 147 Fed. 15, 23, BobbsU. S. 339, 28 SCt 722, 52 L. ed. 1086] by this court in Kipling v. Putnam, (where the court said: "As was said [cit Harrison v. Maynard, 61 Fed. 120 Fed. 631, 57 CCA 295, 65 LRA 873 find any provision in the agreements 699. 10 CCA 17]: 'We are unable to with plaintiff's publishers which prosheets to the defendants, but if such hibited the sale of the copyrighted tiff's remedy would a provision were present, the plaincontract' "). be against the publishers for breach of an action 46. Warne v. Seebohm, 39 Ch. D. 73, 7 ERC 98; Ager v. Peninsular, etc.. Nav. Co., 26 Ch D 627 Novello v. Sudlow, 12 C. B. 177, 74 ECL 177, 138 Reprint 869; Tinsley v. Lacy. 1 Hem. Arthur, 1 Hem. & M. 603, 71 Reprint & M. 747, 71 Reprint 327; Hotten v. sion of Bible). J. 570 (infringement of Revised Ver264; Oxford, etc., Univ. v. Gill, 43 Sol. , same title, page |