66 64 65 subject of private property, but exists only in the concrete form in which the idea may be embodied, as in language, paintings, and sculpture. But every new and innocent product of mental labor embodied in concrete form is the exclusive property of its author so long as it remains unpublished and untransferred. It need not, however, be reduced to writing at all so long as it can readily be identified.67 The common-law right extends to every literary composition, whether large or small.68 A mere railway ticket is not such an intellectual production as to be the subject of a common-law property right. The name and personality of a character in fiction is not the subject of property." A similar ruling has been made as to characters in published cartoons."1 A secret code for use in business is private property.72 69 "It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes." Holmes v. Hurst, 174 U. S. 82, 89, 19 SCt 606, 43 L. ed. 904 [aff 80 Fed. 514, 25 CCA 610 (aff 76 Fed. 757)1. "As the owner of material possessions may assert his rights wherever or in whatever disguise his property is found, so the author of a literary composition may claim it 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 language or the exact words of the original, but whether, in substance, it is reproduced; not whether the whole, but a material part is taken. controlling question is whether the substance of the work is taken without authority." Maxwell v. Goodwin, 93 Fed. 665, 666. The "The law includes within its protection maps, charts, musical compositions, engravings, photographs, paintings, catalogues, trade lists and any other thing of a similar nature regardless of its precise form.' Taft v. Smith, 76 Misc. 283, 286, 134 NYS 1011. 64. See infra § 22. 65. See infra § 22. 66. Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177. "Every new and innocent product of mental labor, which has been embodied in writing or some other material form, being the exclusive property of its author, the law securing it to him as such, and restraining every other person from infringing his right. Whether the 'ideas thus unpublished take the shape of written manuscripts of literary, dramatic or musical compositions, or whether they are the designs for works of ornament or utility planned by the mind of an artist, they are equally inviolable while they remain unpublished, and the author possesses an absolute right to publish them or not, as he thinks fit (and if he does not desire to publish them), to hinder their publication, either in whole or in part, by any one else.'" Wright v. Eisle, 86 App. Div. 356, 357, 83 NYS 887 [quot Palmer v. De Witt, 47 N. Y. 532. 537, 7 AmR 480]. are "Whether the product of such labor consists in literary, dramatic or musical compositions, or designs for works of ornament or utility, planned by the mind of an artist. they equally inviolable while they remain unpublished, and their Owner may exercise the same supreme dominion over them that the owner of any other species of property may exercise over it.' Aronson v. Baker, 43 N. J. Eq. 365, 367, 12 A 177. 67. Walter v. Lane, [19001 A. C. 539, 2 BRC 312; Nicols v. Pitman, 26 70 А [11] 2. Quality of Production-a. Originality. It is generally laid down that literary intellectual productions in order to be the subject of property must be original with the author,73 but by this is meant nothing more than that it must represent independent mental labor on the part of the author.74 Entire originality is not required.75 A translation from a foreign language, or a new arrangement or adaptation of existing materials," is sufficiently original to come within the rule. Of course a mere copyist of another's work acquires no property in his piracy. Similar rules apply to statutory copyrights.79 78 76 Dramatic compositions. A dramatic composition need be original only in its arrangement or construction in order to be private property. A dramatiza Ch. D. 374 (lecture protected against shorthand report). But see WhiteSmith Music Pub. Co. v. Apollo Co., 139 Fed. 427 [aff 147 Fed. 226, 77 CCA 368, and aff 209 U. S. 1. 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628] (holding that only the tangible embodiment of the conception may be copyrighted). [a] Literary composition as it lies in the author's mind before it is substantiated by reducing it into writing has the essential requisites to make it the subject of property, and while it thus lies dormant in the author's mind it is absolutely in the power of the proprietor. He alone is entitled to the profits of communicating or making it public. Millar v. Taylor, 4 Burr. 2303, 98 Reprint 201; Tonson v. Collins, W. Bl. 301, 96 Reprint 169. 80 "The matter must be original and possess some possible utility. The originality, however, may be of the lowest order, and the utility barely perceptible." Brightely v. Littleton, 37 Fed. 103, 104. 74. Prince Albert v. Strange, 2 De G. & Sm. 652, 64 Reprint 293. 75. Aronson v. Baker, 43 N. J. Eq. 365, 379, 12 A 177 ("Erminie"). "It is not necessary that a work of this kind should be entirely original, or original in anything except its arrangement or construction, to be private property." Aronson v. Baker, supra (comic opera). 76. Fleron v. Lackaye, 14 NYS 292, 293; Wyatt v. Barnard, 3 Ves. & B. 77, 35 Reprint 408. "He who honestly translates or dramatizes, produces a work in a new and useful form, and is entitled [b] A speech, address, or lecture to the same protection_extended to not committed to writing is the prop-original compositions. The value of erty of the author. Walter v. Lane, [1900] A. C. 539. And see Abernethy v. Hutchinson, 1 Hall & T. 28, 47 Reprint 1313 (where Lord Eldon doubted). 68. White v. Geroch, 2 B. & Ald. 298, 106 Reprint 376; 8 Halsbury L. Eng. p 137. 69. Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 666 (where the court said: "The plaintiff also claimed in argument a Common Law right of copy and property irrespective of the statute. I do not discuss this interesting and much-vexed question because I do not think the card or ticket to be such an intellectual production as could have claimed for its author or inventor any protection at Common Law"). 70. Atlas Mfg. Co. v. Street, 204 Fed. 398, 400, 122 CCA 568, 47 LRA NS 1002 ("Nick Carter"). 71. a translation depends upon the learning and ability of the person who does the work, and upon his adaptability to the particular task undertaken. It requires versatile talent of a high order to do it well." Fleron v. Lackaye, supra. 77. Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 ("Erminie"); Walter v. Lane, [1900] A. C. 539, 2 BRC 312. See also infra § 21, 95. [a] Rule applied.-"The compilation of a street directory, the reports of proceedings in courts of law, and the tables of the times of running of certain railway trains have been held to bring the producers within the word 'author'; and yet in one sense no original matter can be found in such publications." Walter v. Lane, [1900] A. C. 539, 554, 2 BRC 312. 78. See cases supra this section and infra § 91. 79. Hene v. Samstag, 198 Fed. 359. [a] Illustration.-An agreement by the artist who produced the sketches of "The Newlyweds," by which he licensed complainants to "use an exact reproduction of Napoleon, the Newlyweds' baby, in the shape of a doll," conferred no clusive right, in the absence of any copyright covering such reproduction. Hene v. Samstag, 198 Fed. 359, 360. ex 72. Simmons Hardware Co. V. Waibel, 1 S. D. 488, 47 NW 814, 36 AmSR 755, 11 LRA 267. [a] Rule applied-A mercantile company, inventing and preparing a secret code or system of letters, figures, and characters showing the cost and selling price of its wares and merchandise for use between itself and its traveling salesmen, has a property therein which equity will protect. Simmons Hardware Co. v. Waibel, 1 S. D. 488. 47 NW 814, 36 AmSR 755, 11 LRA 267. 73. Trade Auxiliary Co. v. Middlesborough, etc.. Protection Assoc.. 40 Ch. D. 425; Bell v. Whitehead, 3 Jur. 68; Wilkins v. Aikin, 17 Ves. Jr. 422, 34 Reprint 163. See infra §§ 91-97. 80. Aronson V. Fleckenstein, 28 Fed. 75; Shook v. Rankin, 21 F. Cas. No. 12,804, 6 Biss. 477; Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177; Fleron V. Lackaye, 14 NYS 292; Chatterton v. Cave, 3 App. Cas. 483; Toole v. Young, L. R. 9 Q. B. 523, 9 ERC 871; Hatton v. Kean, 7 C. B. N. S. 268, 97 ECL 268, 141 Reprint 819 (where plaintiff adapted a play from Shakespeare and was protected in his adaptation); Tree v. Bowkett, 74 L. T. Rep. N. S. 77. See also infra § 109. [a] Dramatic originality.-"The defendant also denies that 'Erminie' is an original work to a sufficient extent to make it the proper subject of private ownership. His contention in this regard is, that all its leading incidents and features have been taken or borrowed from other dramatic works which have long since been abandoned and thus become public property. of This ground defence presents a question which, in the great majority of cases, cannot be decided before final hearing without great danger of doing injustice to the complainant. It is not tion of a novel is an original work entitled to protection.81 [12] b. Legality and Morality. Literary matter must be innocent in order to be the subject of property.82 No protection will be accorded by the courts to what is illegal, immoral, or against public policy.83 The same principle is applied to statutory copyright.& 84 [13] c. Literary or Artistic Merit. No literary or artistic merit in the product is necessary to entitle one to protection for the result of his mental necessary that a work of this kind should be entirely original, or original in anything except its arrangement or construction, to be private property. A play or other dramatic work, which is composed wholly of selections from literary or dramatic compositions which are public property, may possess so much originality in its construction, or be SO unique in its dramatic effect, as to display a very high order of dramatic skill and talent. Such a work would be the proper subject of private ownership simply in virtue of its originality in construction." Aronson v. Baker, 43 N. J. Eq. 365, 370, 12 A 177. [b] Operetta adapted from an old play. Even though an operatta is based on an old drama, if the title, dialogue, minor characteristics, scenery, and dramatic situations which, with the orchestration, orchestra parts, songs, and music. make up the operetta, are so far different as to entitle the piece, on the whole, to the claim of originality, it is entitled to the common-law protection given to intellectual productions. Aronson v. Fleckenstein, 28 Fed. 75. 81. Fleron v. Lackaye, 14 NYS 292. See also infra § 109. [a] Reason for rule.-"Dramatization requires the skill and experience of the playwright, and the success of the work depends upon his dramatic knowledge and genius." Fleron V. Lackaye, 14 NYS 292, 293. [b] Two independent dramatizations from the same novel may be made, although they are necessarily very similar in form and construction. Tompkins v. Duff, 13 N. Y. Daily Reg. 421, 493. V. V. 82. Broder v. Zeno Mauvais Music Co., 88 Fed. 74; Martinetti v. Maguire, 16 F. Cas. No. 9,173, 1 Abb. 356, Deady 216; Shook v. Daly. 49 How Pr (N. Y.) 366 (drama); Du Bost Bresford, 2 Campb. 511; Hime Dale, 2 Campb. 27 note; Southy v. Sherwood, 2 Meriv. 435, 35 Reprint 1006; Gale v. Leckie, 2 Stark. 107. 3 ECL 337; Walcot v. Walker, 7 Ves. Jr. 1, 32 Reprint 1. [a] Doctrine criticized.-The decision on which this doctrine is based has been severely criticized. See Curtis Copyright p 157 et seq; Drone Copyright p 113; 10 Lives Lord Chancellors p 257 (per Lord Campbell); Shortt L. Lit. & Art (za ed) pp 4-6; Story Eq. Jur. (12th ed) § 938. a [b] Statistics of crime and criminal data.-"If then the plaintiff's collection of information is otherwise entitled to protection, it does not cease to be so, even if it is information concerning illegal acts. The statistics of crime are property to the same extent as any other statistics, even if collected by criminal who furnishes some of the data. The Supreme Court of Illinois has recognized in the fullest terms the value and necessity of the knowledge which the plaintiffs control. It must have known, even if it did not have the evidence before it, as to which we cannot tell from the report, what was the course of dealing on the exchange. Yet it was so far from suggesting that the plaintiff's work was unmeritorious that it held it clothed with a public use. New York, etc., Grain, etc.. Exch. v. Chicago Bd. of Trade, 127 Ill. 153, 19 NE 855, 11 AmSR 107 2 LRA 411." Chicago Bd. of Trade v. Christie 83. Chicago Bd. of Trade v. L. A. [a] Burden of proof"The suggestion that the novel or the dramatization is immoral is answered by the want of evidence on that subject; for. in the absence of proof to the contrary, the court must assume that it is a legitimate and moral production, particularly in view of the fact that it has been produced with approval before critical audiences at one of the first theaters in the city. i. e., Niblo's, where dramatic art has long held sway." Fleron v. Lackaye, 14 NYS 292, 294. 84. See infra § 99. 85. Baker v. Libbie. 210 Mass. 599. 97 NE 109, 37 LRANS 944. AnnCas 1912D 551; Prince Albert v. Strange, 2 De G. & Sm. 652, 64 Reprint 293. See also infra § 98. [a] Reason for rule.-"The labor of composing letters for private and familiar correspondence may be trifling, or it may be severe, but it is none the less the result of an expenditure of thought and time. The market value of such an effort may be measured by the opinions of others. but the fact of property is not created thereby. A canvas upon which an obscure or unskilful painter has toiled does not cease to be property merely because by conventional standards it is valueless as a work of art. Few products of the intellect reveal individual characteristics more surely than familiar correspondence, entries in diaries or other unambitious writings. No sound distinction in is regard can be made between that which has literary merit and that which is without it. Such a distinction could not be drawn with any certainty. While extremes might be discovered. compositions near the dividing line would be subject to no fixed criterion at any given moment, and scarcely anything is more fluctuating than the literary taste of the general public. Even those counted as experts in literature differ widely in opinion both in the same and in successive generations as to the relative merits of different authors. The basic principle on which the right of the author is sustained even as to writings confessedly literature is not their literary quality, but the fact that they are the product of labor." Baker v. Libbie, 210 Mass. 599, 604, 97 NE 109, 37 LRANS 944, AnnCas 1912D 551. [b] The contrary doctrine (1) which was laid down in the early cases in New York (Wetmore V. Scovell. 3 Edw. (N. Y.) 515; Hoyt v. Mackenzie, 3 Barb. Ch. (N. Y.) 320. 49 AmD 178) (2) may be considered as overruled by Woolsey v. Judd, 11 N. Y. Super. 379. 386. 11 How Pr 49 (where the court said: "We can perceive no reason for doubting that the exclusive property of an author rests exactly upon the same ground as that of a manufacturer or artist -a painting may be a wretched daub -a statue, a lamentable abortion; yet, should either be purloined by an enemy with the view to secure profits to himself, or to disgrace the artist by its public exhibition, court of equity would renounce its principles should it refuse to protect the owner, the unfortunate artist, by a peremptory injunction"). a Rule in copyright cases see infra $ 98. 86. Root v. Borst, 142 N. Y. 62, 36 NE 814; Taft v. Smith, 76 Misc. 283, 134 NYS 1011; Shook v. Daly, 49 HowPr (N. Y.) 366; Forrester v. Waller [cit Millar v. Taylor, 4 Burr. 2303, 2331, 98 Reprint 201]; Webb v. Rose [cit Millar v. Taylor, 4 Burr. 2303, 2330, 98 Reprint 201] (holding that notes and conveyancers' drafts are the literary property of the author or his representatives). "The author or compiler of a manuscript has a property right in it. This property right attaches not only to the physical or corporeal substance which composes the manuscript but includes the incorporeal right to the exclusive use of its contents." Taft v. Smith, 76 Misc. 283, 286. 134 NYS 1011. 87. Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924 (where the publication of a part of Lord Clarendon's History by a possessor of the manuscript was restrained). 88. See infra § 15. 89. Press Pub. Co. v. Monroe, 73 Fed. 196, 19 CCA 429, 51 LRA 353 [app dism 164 U. S. 105, 17 SCt 40, 41 L. ed. 367]. V. 90. American Law Book Co. Chamberlayne, 165 Fed. 313, 91 CCA 281; Jones v. American Law Book Co., 125 App. Div. 519, 109 NYS 706. 91. Originality of dramatic productions see supra § 11; infra § 109. Statutory copyright see infra §§ 107-109. 92. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492; Maxwell v. Goodwin, 93 Fed. 665; Aronson v. Baker, 43 N. J. Eq. 365. 12 A 177 ("Erminie"); Morris v. Kelly, 1 Jac. & W. 481, 37 Reprint 451. See also cases infra this section. Contra Marsh v. Conquest, 17 C. B. N. S. 418, 112 ECL 418, 144 Reprint 169 (per Erle, C. J.. but, as Mr. MacGillivray points out, he is not supported by the authority cited by him). [a] Conflicting views.-(1) "There was some question whether the author of a play had, at common law, the sole right of representation; but so long as the play existed in manuscript and was unpublished, and not in some way dedicated to the public, the sole right of representation or performance would seem to follow from the exclusive right of property." Frohman v. Ferris, 238 Ill. 430, 444. 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492, and quot Crowe v. Aiken. 6 F. Cas. No. 3,441, 2 Biss. 208, 213]. (2) "The existence of a dramatic or stage right at common law, upon which the plaintiff's cause of action must rest. is controverted by the English precedents cited, and support is found in American authorities as well for the further contention that there is no 98 93 94 drama,9 or opera, although not copyrighted, but provided it has not been published, will be protected. Thus an unauthorized publication96 or performance9 will be enjoined as an invasion of property. This right exists in the written scenario of a motion picture photoplay and in the photoplay itself as recorded on the photographic film.1 But there is no common-law literary property right in the manner and postures of the actors used by them in performing the play2 or in stage properties.3 [§ 16] c. Musical Compositions. Musical compositions are the subject of exclusive common-law property rights." 6 tions. This protection and property extends to paintings, etchings, and photographs. An artist has the exclusive right to reproduce copies of his picture,1o unless and until he has parted with that right." The common-law right exists separately and apart from the title to the physical object." The latter may be sold or transferred to one person, and the common-law, intangible property rights to another, or they may be retained by the artist.13 [18] e. Letters. There is literary property in ordinary letters,14 resting on the ground of authorship,15 which will be protected by appropriate remedies in favor of the person entitled thereto." 16 It is not necessary that the letters should have any literary quality or any originality of ideas.17 Familiar and business letters are as much property as more 2. Savage v. Hoffman, 159 Fed. 584. See also infra § 318 text and note 98; and § 321 text and note 48. [a] Rule applied.—“Obviously the complainant has no literary property in the manner in which Barbanell and Brian dance or posture. They, if any one, have the right to complain. The manner and method of every dancer and actor is individual, and utterly unlike the railroad scene, which was held the subject of literary property in Daly v. Palmer, 6 F. Čas. No. 3,552, 6 Blatchf. 256." Savage v. Hoffman, 159 Fed. 584, 585. 3. See infra § 318. [§ 17] d. Artistic Productions. The owner is protected by the common law in the exclusive control and enjoyment of unpublished artistic producinherent property right in ideas, sentiments, or creations of the imagination expressed by an author, apart either from the manuscript in which they are contained, or 'the concrete form which he has given them, and the language in which he has clothed them'. Stowe v. Thomas, 23 F. Cas. No. 13,514, 2 Wall. Jr. 547. On the other hand, American decisions have in notable instances upheld dramatic rights, not resting on the copyright statutes, but as literary property at common law." Maxwell v. Goodwin, 93 Fed. 665. (3) Mr. MacGillivray, after a review of the cases, comes to the conclusion that there was no performing rights at common law, although performance of an unpublished manuscript would be redressed as an unlawful invasion of the author's exclusive common-law rights, that is, the right to prevent any use of his unpublished manuscript, but he says that the question is doubtful. MacGillivray Copyright p 122. 93. Maxwell v. Goodwin, 93 Fed. 665; Ockenholdt v. Frohman, 60 Ill. A. 300; Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480; Fleron v. Lackaye, 14 NYS 292; French v. Conelly, 1 NYWkly Dig 197; Savage v. Singer, 24 Pa. Dist. 482. [a] Dramatization of copyright novel. There is a common-law property in a dramatization of a copyrighted novel made under a license from the copyright proprietor. Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 Fed. 374 [aff 220 Fed. 448, 137 CCA 42]. What constitutes dramatic position see infra § 108. com 94. Aronson V. Fleckenstein, 28 Fed. 75; Goldmark v. Kreling, 25 Fed. 349; Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 (“Erminie"); Tams v. Witmark, 30 Misc. 293, 63 NYS 721 [aff 48 App. Div. 632 mem, 63 NYS 1117 mem]. 95. Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480. What constitutes publication see infra §§ 46-56. 96. Palmer v. DeWitt, 47 N. Y. 532. 7 AmR 480. 9'7. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263. 56 L. ed. 492; French v. Conelly, 1 NY Wkly Dig 197. 98. See cases supra this section. See also infra § 62. v. 99. Universal Film Mfg. Co. Copperman, 218 Fed. 577, 134 CCA 305 [aff 212 Fed. 301]. 1. Universal Film Mfg. Co. V. Copperman, 218 Fed. 577, 134 CCA 305 [aff 212 Fed. 301]; Savage v. Singer, 24 Pa. Dist. 482, 483 (trial scene from "Madam X" held an infringement of common-law dramatic rights). "The right to the production of the play or drama known as 'Madam X,' and the use of the name and plot thereof in the form of motion pictures is a common law right." Savage v. Singer, supra. 4. Musical copyright see infra §§ 110, 111. 5. Mikado, etc., Case, 25 Fed. 183, 6. American Tobacco Co. v. Werck- 7. American Tobacco Co. V. Caliga v. Inter-Ocean Newspaper Co., or "The property rights of the author in his production, intellectual artistic, are two fold-absolute ownership of the corporeal production, alike with other property ownership, and an independent right to make duplications, which is equally his own so long as he withholds from publication to the world. The first-mentioned right is unaffected by either class of copyright, and one or both are subject to his disposition, absolute or qualified, in common with other property rights." Caliga v. Inter-Ocean Newspaper Co., supra. 13. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; Caliga v. Inter-Ocean Newspaper Co., 157 Fed. 186, 84 CCA 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 150]. See also infra § 33 note 22; § 38 note 57. 14. Ky-Grigsby v. Breckinridge, 2 Bush 480, 92 AmD 509. La.-Denis v. Leclerc, 1 Mart. 297, 5 AmD 712. Mass.-Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, Ann Cas1912D 551. N. Y.-Woolsey v. Judd, 11 N. Y. Super. 379, 11 HowPr 49. Pa.-Widdemer v. Hubbard, 44 Leg Int 252. Vt.-Barrett v. Fish, 72 Vt. 18, 47 A 174, 82 AmSR 914, 51 LRA 754. Eng. Philip v. Pennell, [1907] 2 Ch. 577; Thompson V. Stanhope, Ambl. 737, 27 Reprint 476 (which was a suit by the executors of Lord Chesterfield to restrain publication of his famous letters to his son); Pope v. Curl, 2 Atk. 342, 26 Reprint 608; Granard v. Dunkin, 1 Ball & B. 207; Lytton v. Devey, 54 L. J. Ch. 293; Labouchere v. Hess, 77 L. T. Rep. N. S. 559; Gee v. Pritchard, 2 Swanst. 402, 36 Reprint 670. "In 1804 the Scottish court on the suit of his children interdicted the publication of manuscript letters of Robert Burns. Cadell & Davies v. 2 Stewart, 1 Bell's Comm. 116 n.' Baker v. Libbie, 210 Mass. 599, 602, 97 NE 109, 37 LRANS 944, AnnCas 1912D 551. 8. Prince Albert V. Strange, 10. Caliga v. Inter-Ocean News- [a] Physical interference with 12. American Tobacco Co. V. Motion picture copyrights see infra Werckmeister, 207 U. S. 284, 28 SCt §§ 120-122. 72, 52 L. ed. 208, 12 AnnCas 595: Ownership and rights as between sender and receiver see infra § 32. 15. Grigsby V. Breckinridge, 2 Bush (Ky.) 480, 92 AmD 509. 16. Persons entitled to property in letters see infra § 32. 17. U. S.-Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100. La.-Denis v. Leclerc, 1 Mart. 297, 5 AmD 712. Mass.-Baker v. Libbie, 210 Mass. 599. 97 NE 109, 37 LRANS 944, Ann Cas1912D 551. N. Y.-Woolsey v. Judd, 11 N. Y. Super. 379, 11 How Pr 49. Eng.-Gee v. Pritchard, 2 Swanst. 402, 36 Reprint 670. See also supra §§ 11-13. tected against invasion as long as they remain unpublished.21 finished compositions intended for the press,' [§ 19] f. Architectural Plans and Drawings. The property in architectural plans and drawings is protected by the common law.20 [20] g. Lectures, Sermons, and Addresses. There is a common-law property in lectures, sermons, and other like addresses which will be pro "I think it will be extremely diffcult to say where that distinction is to be found between private letters of one nature, and private letters of another nature." Gee v. Pritchard, 2 Swanst. 402, 426, 36 Reprint 670 (per Lord Eldon). 18. U. S.-Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100. La.-Denis v. Leclerc, 1 Mart. 297, 5 AmD 712. Mass.-Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, Ann Cas1912D 551. N. Y.-Woolsey v. Judd, 11 N. Y. Super. 379, 11 How Pr 49. Pa.-Dock v. Dock, 180 Pa. 14, 36 A 411, 57 AmSR 617. Eng.-Pope v. Curl, 2 Atk. 342, 26 Reprint 608 (suit by Alexander Pope to restrain publication of letters written by him to Swift and others). Ont.-Laidlaw v. Lear, 30 Ont. 26. "The general law may be stated to be, as it is summed up in one of the text books, that the publication of private letters, whether on private matters of business, literary topics, or relating to family affairs, if attempted to be published without authority, may be enjoined." Laidlaw v. Lear, 30 Ont. 26, 30. "The author of any letter or letters, (and his representatives,) whether they are literary compositions, or familiar letters, or letters of business, possess the sole and exclusive copyright therein; and that no persons, neither those to whom they are addressed, nor other persons, have any right or authority, to publish the same upon their own account, or for their own benefit." Baker v. Libbie, 210 Mass. 599, 603, 97 NE 109, 37 LRANS 944, AnnCas 1912D 551 [quot Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100, 110]. 19. Hoyt v. Mackenzie, 3 Barb. Ch. (N. Y.) 320, 49 AmD 178; Wetmore v. Scovell, 3 Edw. (N. Y.) 515. [a] Overruled and criticized cases. "Against these opinions are Wetmore v. Scovell, 3 Edw. (N. Y.) 515, and Hoyt v. Mackenzie, 3 Barb. Ch. (N. Y.) 320, 49 AmD 178, decided respectively of Vice-Chancellor McCoun and Chancellor Walworth while sitting alone. They were criticised and overruled in Woolsey v. Judd, 11 N. Y. Super. 379, 11 How Pr 49, by a court of six judges. There are also certain doubtful dicta by a vicechancellor in Perceval v. Phipps, 2 Ves. & B. 19, 28, 35 Reprint 225, which are relied upon as asserting a somewhat similar view. But it is not necessary to discuss them in detail, for this review of cases demonstrates that the weight of decisions by courts of great authority, speaking often through judges of high distinction for learning and ability, supports the conclusion that equity will afford injunctive relief to the author against the publication of his private letters upon commonplace subjects without regard to their literary merit or the popular attention or special curiosity aroused by them." Baker v. Libbie, 210 Mass. 599, 603, 97 NE 109, 37 LRANS 944, AnnCas1912D 551. 20. Wright v. Eisle, 86 App. Div. 356, 83 NYS 887; Gendell v. Örr, 18 Phila. (Pa.) 191. [a] Rule applied.—(1) An architect's plans, as long as they remain unpublished in the possession of the architect, constitute his personal property, and no one may take or use [21] h. Facts and Information; News. There is a common-law property in facts and information collected and utilized by skill, labor, and expense, although the same information is available to anyone who chooses to collect it.22 Such property has been recognized and protected in market quotations,2 23-24 credit ratings,25 abstract books and in them without his consent. Wright v. Eisle, 86 App. Div. 356, 83 NYS 887. (2) An architect has a common-law right of property in his design of a novel and artistic porch before its publication by application to a building which he has erected. Gendell v. Orr, 13 Phila. (Pa.) 191. Ownership of architectural plans and drawings see infra § 31. 21. McDearmott Commn. Co. v. Chicago Bd. of Trade, 146 Fed. 961, 77 CCA 479. 7 LRANS 889, 8 AnnCas 759 [aff 143 Fed. 188]; Keene v. Kimball, 16 Gray (Mass.) 545, 77 AmD 426; New Jersey State Dental Soc. v. Dentacura Co., 57 N. J. Eq. 593, 41 A 672 [aff 58 N. J. Eq. 582, 43 A 1098]; Abernethy v. Hutchinson, 1 Hall & T. 28, 47 Reprint 1313 (where Lord Eldon bases his decision on the doctrine of implied contract). "Popular lectures may be taken down verbatim, and the person taking them down has a right to their use. He may in this way perpetuate the instruction he receives, but he may not print them. The lecturer designed to instruct his hearers, and not the public at large. Any use, therefore, of the lectures, which would operate injuriously to the lecturer, would be a fraud upon him for which the law would give him redress." Bartlette v. Crittenden, 2 F. Cas. No. 1,082, 4 McLean 300, 304. Oral lectures see supra § 10 text and note 67. What constitutes publication see infra § 53. 22. U. S.-Chicago Bd. of Trade v. Christie Grain, etc., Co., 198 U. S. 236, 25 SCt 637, 49 L. ed. 1031; McDearmott Commn. Co. v. Chicago Bd. of Trade, 146 Fed. 961, 77 CČA 479, 7 LRANS 889. 8 AnnCas 759 [aff 143 Fed. 188]; Chicago Bd. of Trade v. Donovan Commn. Co., 145 Fed. 31, 76 CCA 16; Chicago Bd. of Trade v. Cella Commn. Co., 145 Fed. 28, 76 CCA 28 [rev 121 Fed. 1012]; Emerson V. Davies, 8 F. Cas. No. 4,436, 3 Story 768. Mass.-F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 NE 204, 97 AmSR 412, 60 LRA 810. N. Y.-Taft v. Smith, 76 Misc. 283, 134 NYS 1011. Tex.-Vernon Abstract Co. v. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919. Eng.-Exchange Tel. Co., Ltd. v. Howard, etc., Press Agency, Ltd., 22 T. L. R. 375. "We are of opinion that one's possession of information which he has obtained, compiled, and put in form for a specific use, is a right which ought to be protected against those who would share it with him without his consent." F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 65, 66 NE 204, 97 AmSR 412, 60 LRA 810. "A man may impress upon materials, which are open to all the world, a right of property when he has, as the result of his own efforts and expenditure, collected and reduced to a form serviceable to the public such material. This right of property, however, does not preclude another person, as the result of his own efforts and diligence, from collecting independently, and utilizing as he may see fit, the same materials." Kiernan v. Manhattan Quotation Tel. Co., 50 HowPr (N. Y.) 194. 198. [a] Code of cost and selling price. -A mercantile company, inventing or and preparing a secret code system of letters, figures, and characters showing the cost and selling price of its wares and merchandise, for use between itself and its traveling salesmen, has a property therein which equity will protect. Simmons Hardware Co. v. Waibel, 1 S. D. 488, 47 NW 814, 36 AmSR 755, 11 LRA 267. Copyright in compilations see infra § 95. 23-24. U. S.-Chicago Bd. of Trade v. Christie Grain, etc., Co., 198 U. S. 236, 25 SCt 637, 49 L. ed. 1031 [rev 125 Fed. 161, 61 CCA 11 (rev 116 Fed. 944)]; Chicago Bd. of Trade v. Tucker, 221 Fed. 305, 137 CCA 255; McDearmott Commn. Co. v. Chicago Bd. of Trade, 146 Fed. 961, 77 CCA 479, 7 LRANS 889, 8 AnnCas 759 [aff 143 Fed. 188]; Chicago Bd. of Trade v. Donovan Commn. Co., 145 Fed. 31, 76 CCA 16; Chicago Bd. of Trade v. Cella Commn. Co., 145 Fed. 28, 76 CCA 28 [rev 121 Fed. 1012]; Chicago Bd. of Trade v. L. A. Kinsey Co., 130 Fed. 507, 64 CCA 669, 69 LRA 59 [aff 198 U. S. 236, 25 SCt 637, 49 L. ed. 1031]; Illinois Commn. Co. v. Cleveland Tel. Co., 119 Fed. 301, 56 CCA 205; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 56 CCA 198. 60 LRA 805; Chicago Bd. of Trade v. Hadden-Krull Co., 109 Fed. 705; Cleveland Tel. Co. v. Stone, 105 Fed. 794; Chicago Bd. of Trade v. C. B. Thomson Commn. Co., 103 Fed. 902. Ill-New York, etc., Grain, etc., Exch. v. Chicago Bd. of Trade, 127 Ill. 153, 19 NE 855, 11 AmSR 107, 2 LRA 411. Mass.-F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 NE 204, 97 AmSR 412, 60 LRA 810. to N. Y.-Kiernan v. Manhattan Quotation Tel. Co., 50 How Pr 194. But see Matter of Renville, 46 App. Div. 37, 46, 61 NYS 549 [disappr New York, etc., Stock Exch. v. Chicago Bd. of Trade, 127 Ill. 153, 19 NE 855, 11 AmSR 107, 2 LRA 411] (where the court said: "Information as transactions upon the stock exchange is not such property as could be clothed with a public interest,' so that a 'grant to the public of an interest in that use' is to be implied. Such information is not property in any sense, and the public or a particular individual has no right to go to this voluntary association and insist that information of its transactions should be furnished"). Eng. Exchange Tel. Co. v. Gregory, [1896] 1 Q. B. 147; Exchange Tel. Co. v. Central News [1897] 2 Ch. 48. See also Exchanges [17 Cyc 869]. "The plaintiff's collection of quotations is entitled to the protection of the law. It stands like a trade secret. The plaintiff has the right to keep the work which it has done, or paid for doing, to itself. The fact that others might do similar work, if they might, does not authorize them to steal the plaintiff's." Chicago Bd. of Trade V. Christie Grain, etc., Co., 198 U. S. 236, 250, 25 SCt 637, 49 L. ed. 1031. Copyright in quotations see infra § 128. 25. Ladd v. Oxnard, 75 Fed. 703; Jewelers' Mercantile Agency v. Jewelers' Weekly Pub. Co., 155 N. Y. 241, 49 NE 872, 63 AmSR 666, 41 LRA 846 [rev 84 Hun 12, 32 NYS 41]. Copyright in credit ratings see infra §§ 95, 129. 31 28 dexes,2 maps and charts,27 and news items.2 The property right in this class of cases is limited to a property in the particular statement or compilation.29 It does not extend to the mere plan adopted for imparting the information,30 or to the idea of so doing. Nor does it preclude another person from making an independent collection of the same facts or information and using it as his own.32 The facts and information themselves are not the subject of private property, and cannot be withdrawn from public use by reason of their collection and statement by any person. 33 In the case of news 26. Dart v. Woodhouse, 40 Mich. 399, 29 AmR 544 [appr Perry v. Big Rapids, 67 Mich. 146, 24 NW 530, 11 AmSR 570]; Banker v. Caldwell, 3 Minn. 94; Watson v. Cowdrey, 23 Hun (N. Y.) 169; Vernon Abstract Co. v. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919. See Leon Loan, etc., Co. v. Leon Equalization Bd., 86 Iowa 127, 53 NW 94, 41 Am SR 486, 17 LRA 199 (holding manuscript abstract books subject to taxation). Copyright in abstracts of title see infra §§ 95, 131. 27. Rees v. Peltzer, 75 Ill. 475. Copyright in maps and charts see infra 88 112, 113. 28. Associated Press v. International News Service, 240 Fed. 983 [aff 245 Fed. 244. CCA -1; F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 NE 204, 97 AmSR 412, 60 LRA 810; Kiernan v. Manhattan Quotation Tel. Co., 50 HowPr (N. Y.) 194; Exchange Tel. Co., Ltd. V. Howard, etc.. Press Agency, Ltd., 22 T. L. R. 375. See also infra note 34. [a] Rule applied.-A corporation, which has for its business the collection of news in all parts of the world by its agents has a commonlaw right of property in news, such as "foreign financial news," consisting of quotations of consols, rentes, U. S. bonds, the rates of interest, and increase and decrease of the specie in the banks of England and France, which is collected and telegraphed to it by its agents, and which is not abandoned by publication. And a rival news agency was restrained by injunction from transmitting such news over its wires to its customers. Kiernan v. Manhattan Quotation Tel. Co., 50 HowPr (N. Y.) 194, 198. items, market quotations, and the like, while the courts have struggled to protect them on principles of common-law literary property, and have invoked in aid of the effort the doctrines of breach of contract or breach of. trust and cónfidence, the true view has finally been recognized to be that such news service is property, and is to be protected as property against any act impairing its value as such; but that it is not literary or copyrightable property, and hence is not destroyed and dedicated to the world by mere publication, as would be the case if it were literary property.3 tion-is the essence of appellee's | Fed. 294, 298, 300, 56 CCA 198, 60 service; the quality that wins from LRA 805. (2) "The knowledge of a the patron his patronage. Now, in fact which is unknown to many peovirtue of this quality ... alone, the ple may be the property of a person printed tape has acquired a commer- in that others will pay the person cial value. It is, when thus looked who knows it for information as to at, a distinct commercial product, as that fact. In unpublished matter much so as any other out-put relat- there is at common law a right of ing to business, and brought about property, or there may be in the by the joint agency of capital and circumstances of the case. The plainbusiness ability. In no accurate tiffs here sue, not in copyright at all, view can appellee be said to be a but in respect of that common law publisher or author. Its place, in right of property in information the classification of the law, is that which they had collected and which of a carrier of news; the contents they were in a position to sell. Their of the tape being an implement only, case is that the defendant has stolen in the hands of such carrier, in its their property, that he has surrepengagement for quick transmission. titiously obtained that which belonged This is Service; not Authorship, nor to them, and used it in rivalry with the work of the Publisher. ... The them." Exchange Tel. Co., Ltd. v. immediate business of appellee Howard, etc., Press Agency, Ltd., brought to our attention, in the case 22 T. L. R. 375. (3) "The facts, beunder review, may not arouse any fore it has ascertained them, unless great solicitude. It relates to the they are held for a special purpose gathering and distributing of news, confidentially and as secrets, are not not looked upon perhaps, in all quart- property; but when these facts have ers, as essential to the public wel- been discovered promptly by effort fare. But the questions raised are and at expense, and have been comof much wider significance. They in- piled and put in form, and are of volve, among others, that modern commercial value by reason of the enterprise--one of the distinctive speedy use that can be made of them achievements of our day-which, before they have obtained general combining the genius and the ac- publicity, they are property. They cumulations of men, with the forces represent expensive effort and valuof electricity, combs the earth's sur- able service, and, in the form in face, each day, for what the day which they are presented to subhas brought forth, that whatever be- scribers, they may be used with a falls the sons of men shall come, reasonable expectation of profit from almost instantaneously, into the con- the early possession of them. The sciousness of mankind. Thus, a gun information is not visible, tangible thunders in a harbor on the other property, but there is a valuable side of the earth; before its rever- right of property in it which the berations have ceased, the moral se- courts ought to protect, in every quence of the event has taken root reasonable way, against those seekin every civilized quarter of the ing to obtain it from the owner earth. Famine arises in India to without right, to his damage. What begin its grim march; it has gotten the plaintiff has when the defendant but little under way until a counter seeks to obtain it from him is the army-the unfailing benevolence of possession of valuable information. human kind-has been mustered This early possession is valuable in from America to Russia. On an iso- itself. The plaintiff has it and the lated island, and without premoni- defendant does not have it. If the tion a mountain claps its black defendant can obtain it legitimately hands upon the population of a city; he becomes the owner of the same almost before a ship in the harbor, kind of property, and the two may bewith tidings of the catastrophe, come competitors in the market as could have set sail, relief ships from vendors to those who are willing to the harbors of Christendom are un- pay for it. But if the defendant, surder way. By such agencies as these reptitiously and against the plaintiff's the world is made to face itself un- will, takes from the plaintiff and apceasingly in the glass, and is put to propriates the form of expression those tests that bring increasing which is the symbol of the plaintiff's helpfulness and beauty into the possession, and thus, by direct atheart of our race. Is service like tack, as it were, divides the plainthis to be outlawed? Is the enter- tiff's possession and shares it, this prise of the great news agencies, or conduct is a violation of the plainthe independent enterprise of the tiff's right of property." F. W. great newspapers, or of the great Dodge Co. v. Construction Informatelegraph and cable lines, to be de- tion Co., 183 Mass. 62, 64, 66 NE 204, nied appeal to the courts, against 97 AmSR 412, 60 LRA 810. (4) "The the inroads of the parasite, for no real matter for consideration is other reason than that the law, whether news gathered and sold to a fashioned hitherto to fit the relations newspaper, which publishes it, can of authors and the public, cannot be be used after publication by a commade to fit the relations of the pub-peting news agency, either as a tip [a] Nature of property in news; lic and this dissimilar class of servrationale of protection.—(1) "The ants? Are we to fail our plain duty value of the tape to the patron is for mere lack of precedent? We almost wholly in the fact that the choose, rather, to make precedentknowledge thus communicated is one from which is eliminated, as imearlier, in point of time, than knowl- material, the law grown up around edge communicated through other authorship-and we see no better means, or to persons other than way to start this precedent upon a those having a like service. In just career, than by affirming the order this quality-to coin a word, the pre-appealed from." National Tel. News communicatedness of the informa- Co. v. Western Union Tel. Co., 119 Copyright in news items see infra $128. 29. Springfield v. Thame, 89 L. T. Rep. N. S. 242. See also supra § 10. [a] Copyright cases.-The rule applies to technical or statutory copyright. See infra § 267. same 30. Burnell v. Chown, 69 Fed. 993. Copyright cases see infra § 270. 31. See infra § 268. 32. F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 NE 204, 97 AmSR 412, 60 LRA 810. Copyright cases see infra §§ 95, 267, 307. 33. Davies v. Bowes, 209 Fed. 53 [aff 219 Fed. 178, 134 CCA 552]; F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 NE 204, 97 AmSR 412, 60 LRA 810. 34. Associated Press v. International News Service, 240 Fed. 983 [mod and aff 245 Fed. 244, CCA -1; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 56 CCA 198, 60 LRA 805. for further investigation or as authentic news for immediate distribution before sufficient time has elapsed for the news to be published within the territory in which the gatherer is engaged in the general dissemination of news. . . . I think, therefore, that the only way to afford full protection to the newsgatherer is to prevent the use of news by a rival, either in the form of tips or |