[22] i. Ideas. Abstract ideas are not the subject of private property, and only the concrete ex " pression of them will be protected.35 Since, V. otherwise, for a sufficient time to reasonable reward, and as in that the value of the business to the enable the daily newspapers through- instance of trade quotations; divulg- company depending on its ability, out the country to receive and pub- ing the same to one patron's office through the facilities it has created, lish the news. There is no real full of customers, did not reasonably by the expenditure of money, to furpublication, or purpose to abandon terminate plaintiff's property; So nish such news immediately after the to the public, until that time. here it is reasonable and just that occurrences noted-cannot be said The publication intended, and gen- each member of plaintiff, and plain- to have thereby dedicated such news, erally effected, is one substantially tiff itself has a property right in in such sense as to entitle a comsimultaneous throughout the country; its own news until the reasonable petitor to copy the same from a custhat is, so far simultaneous as geo- reward of each member is received, tomer's tape as fast as received, and graphical differences in time may and that means (with due allowance distribute it to its own patrons. Aspermit. It cannot, therefore, be said for the earth's rotation) until plain-sociated Press v. International News that the complainant has in any fair tiff's most Western members, has en- Service, 240 Fed. 983 [mod and aff sense caused its news to be pub-joyed his reward; which is, not to 245 Fed. 244, CCA-] (where defendlished, and thus abandoned it to the have his local competitor supplied in ant was enjoined from using news public, until all the members whom time for competition with what he items so copied until its commercial it serves have been put in a posi- has paid for. Surely this is a modest value as news had ceased); National tion where publication of the news limit of rights. But the foregoing is Tel. News Co. v. Western Union Tel. has been possible. Viewed in this thought to be avoided, if not contro- Co., 119 Fed. 294, 56 CCA 198, 60 reasonable light, the argument that verted, by dwelling on the word LRA 805 (where defendant was enthe complainant has no further right 'publication,' and insisting in sub- joined from publishing, selling, or to protection after the first publica-stance that when (e. g.) a single using news items so copied until tion of its news loses much of its New York paper (being a member after the lapse of sixty minutes force. The news is in effect unpub- of plaintiff) prints an item and sells from the time it appeared on plainlished and unavailable for use by a copy of that edition, all the world tiff's tickers). (2) "These market competing news agencies until the can copy as it pleases to any ex- quotations are peculiar in their proptime for general publication has tent and for any purpose, commercial erty use and value, and, without elapsed, since only then can the and otherwise, because nothing but immediate transmission to the cuscomplainant be truly said to have copyright protects that paper, and tomer, So that he receives them abandoned its news to the public by copyright does not cover statements simultaneously with all other cusan unrestricted publication. of fact, but merely their literary tomers, and before their publication While I am personally satisfied, after dress or form. The argument as- generally, they possess no purchase giving the matter most deliberate sumes that what plaintiff is inter- value. To make them available, it is and careful consideration, that the ested in and is trying to preserve essential to have the quotations right exists to prevent the sale by is literary property or anything written or printed in some form a competing news agency of news capable of copyright protection. It for the information of all entiwhich is taken from early publica- may be granted that the news- tled to their use; and it appears tions of complainant's members be- paper first giving out the news in here that they were in some infore sufficient time has elapsed to question is copyrighted; that fact stances so furnished in the ticker,' afford opportunity for general pub- statements are not thereby protected and in others were placed on lication, and that the existing prac- as such, and that publication at com- a blackboard in the office of the tice amounts to unfair trade, yet the mon law terminated an author's customer. No reason appears for matter is one of first impression, and rights in his manuscript and the finding a publication in the one my decision cannot be regarded as fruits of his brain; yet it still re- method if not in the other, and I am sufficiently free from doubt to jus- mains true that plaintiff's property of opinion that neither constitutes a tify the granting of a preliminary in news is not literary at all; that it dedication to the public while liminjunction upon this branch of the is not capable of copyright, and that ited to the use and office of the cuscase.' Associated Press v. Inter- publication' as that word is used in tomer." Chicago Bd. of Trade national News Service, 240 Fed. 983, the long line of decisions regarding Hadden-Krull Co., 109 Fed. 705, 706. 991, 995 [mod and aff 245 Fed. 244, literary rights has no determinative (3) Practically all other "quotation" CCA -1. (5) On appeal in the case hearing in this case. cases proceed on the assumption that last cited the doubt of the district publication destroys all private propjudge was resolved in favor of the erty right. See cases supra note 23; right and an injunction was directed infra § 54 note 33. See also Chicago against copying news from published Bd. of Trade V. C. B. Thomson editions of newspapers until its comCommn. Co., 103 Fed. 902 (where it mercial value as news has passed is said: At common law the right away. Judge Hough said: "Propof property of the complainant in its erty, nomen generalissimum, covers quotations as prepared by its officers everything that has an exchangeable and agents until publication is well value; that news possesses the qualestablished, and it is thereby enity stated seems obvious enough titled either to withhold entirely when it is observed that defendant from publication, or to make the first takes it in order to exchange it publication. Against subsequent pubagainst dollars. Assuming now lications the common law affords no the existence at some time of some protection, and it can be obtained property right in plaintiff and to its only through the statutory copynews, the qualities producing exright. Wheaton v. Peters, 8 Pet. (U. changeable value, may be noted. S.) 591, 657, 8 L. ed. 1055, and 3 Regularity and reliability, the fruit Notes on U. S. Reports, 482; Press of organization and expenditure, are, Pub. Co. v. Monroe, 73 Fed. 196, 19 of course, necessary, but all that is CCA 429. That such general rule is vain unless the news is fresh, early, applicable to quotations of the class and, if not always first in point of involved in this controversy appears time, as prompt as any. Time is of to be clearly upheld in Exchange the essence; and the basic question Tel. Co. v. Gregory, [1896] 1 Q. B. on this branch of the discussion is 147, and other cases cited; and to how long does the property quality the extent as well that giving out endure in news. It is sought, if not the quotations to a limited number to limit the doctrine of property in of persons for individual use is not news, to the time during which it such publication as will defeat the remains locked up in the breast of property right.. As the right of its gatherer; to interpret the deciproperty asserted on behalf of the sions cited, as meaning only that complainant subsists only until pubnews is 'like a trade secret,' lost lication.-and from the nature of the when divulged in the course of busitransactions this period is necesness. Doubtless the analogy of resarily one of minutes, rather than of straining in equity wrongful knowlhours,-I am of opinion that an isedge of private business methods sue is raised in that regard which was very useful in developing the can be determined only when the doctrine that the 'courts ought to proofs are taken, and cannot be protect in every reasonable way' the prejudged on this motion for pre'valuable right of property' in inforliminary injunction"). mation. But news is far more than a trade secret, for that must remain private to have its best value, while news is obtained for publicity alone. The true line of decision is indicated by the conclusion of the court in the Christic case-that 'the information will not become public property until the plaintiff has gained his reward.' Of course, this means his (to summarize the matter any [b] Dedication to public. (1) The Breach of contract or of trust and confidence see infra § 54. Effect of publication on literary property generally see infra §§ 40-45. 35. Burnell v. Chown, 69 Fed. 993; Werckmeister v. Springer Lith. Co., 63 Fed. 808; Stowe v. Thomas. 23 F. Cas. No. 13.514, 2 Wall. Jr. 547; Carter v. Bailey, 64 Me. 458, 18 AmR 273; Taft v. Smith, 76 Misc. 283, V. 134 NYS 1011; Oertel v. Wood, 40 [a] Illustrations.—(1) Where the may arise from the mere use of a [c] Play not being produced.-Al- [d] Words in common use.- 39. See infra § 243. 40. Dickey v. Mutual Film Corp., Copyright cases see infra § 267. "Neither the author nor proprietor Copyright cases see infra § 143. [a] Rule applied. "The use by [b] Competition between play and photoplay"It is clear that competition may exist between a play and a photo play, and that an injunction [a] The Webster's Dictionary cases fully develop and apply this doctrine. G. & C. Merriam Co. v. Saalfield Pub. Co., 238 Fed. 1, 151 CCA 77; G. & C. Merriam Co. v. Syndicate Pub. Co., 207 Fed. 515, 125 237 U. S. 618, 35 SCt 708, 59 L. ed. 1148]; G. & C. Merriam Co. v. Saalfield, 190 Fed. 927, 111 CCA 517, 198 Fed. 369, 117 CCA 245; G. & C. Merriam Co. v. Ogilvie, 170 Fed. 167, 95 CCA 423; Ogilvie v. G. & C. Merriam Co., 149 Fed. 858 [mod on other grounds 159 Fed. 638, 88 CCA 596, 16 LRANS 549, 14 AnnCas 796 (certiorari den 209 U. S. 551 mem, 28 SCt 761 mem, 52 L. ed. 922 mem)1; G. & C. Merriam Co. v. Straus, 136 Fed. 477; Merriam v. Texas Siftings Pub. Co., 49 Fed. 944; Merriam v. Famous Shoe, etc., Co., 47 Fed. 411; Merriam v. Holloway Pub. Co., 43 Fed. 450. 41. See infra § 24. 42. American Law Book Co. V. Chamberlayne, 165 Fed. 313, 91 CCA 281; Clemens v. Belford, 14 Fed. 728, 11 Biss. 459; Jones v. American Law Book Co., 125 App. Div. 519, 109 NYS 706; Ellis v. Hurst, 70 Misc. 122, 128 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem)]. [a] Work in public domain.-One entitled to publish a work which is in the public domain also has the right to state the true name of the author, either on the title page or otherwise, so as to show who was the writer or author thereof. Ellis v. Hurst, 70 Misc. 122, 128 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem), and dist Eliot v. Jones, 66 Misc. 95, 120 NYS 989 (aff 140 App. Div. 911 mem, 125 NYS 1119 mem)]. [b] Where an author publishes his work under a nom de plume, but without copyright. so that it falls into the public domain, anyone who republishes such work may use the real name of the author, and is not limited to a use of the nom de plume selected by such author. Ellis V. Hurst. 70 Misc. 122. 128 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem), and dist Eliot v. Jones, 66 Misc. 95, 120 NYS 989 (aff 140 App. Div. 911 mem, 125 NYS 1119 mem)]. [c] New York privacy statute.(1) The right to publish unconyrighted books with the nom de plume of the author carries with it the right to state the true name of the author, either on the title page or otherwise, such use not falling within the Civil Rights Law (Consol. L. c 6 § 50), prohibiting the unauthorized use, for advertising purposes or for the purposes of trade, of the name of a living person. Ellis v. Hurst, 70 Misc. 122, 124, 125, 138 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem)] (where the court said: "The act was evidently designed to forbid, the unauthorized and wanton appropriation or use of a person's name, picture or portrait for trade or advertising purposes where such use is wholly unrelated to the matters or things with which said name, picture or portrait is associated, and it may perhaps also have been intended to forbid the unauthorized use of one's name, portrait or picture when such use is asserted to be related to or connected with the things advertised or sold, but where such a relationship or connection is, in fact, unreal, unsubstantial, pretended or false. In the case at bar the defendants concededly had the right to publish the books in suit with the nom de plume of plaintiff, and this right carried with it the right to state the true name of the author in such form in the book, either upon the title page or otherwise, as to show who was the writer or author thereof.' The Mark Twain case, 14 Fed. 728, 730, 11 Biss. 459. The nom de plume of an author is but the synonym of his true name and, as was said in the 'Mark Twain' case, supra, at page 731, 'the invention of a nom de plume gives the writer no increase of right over another who uses his own name' in the absence of a copyright. In publishing plaintiff's name on the volumes under consideration the defendants published a truthful statement, directly connected with the authorship of the books, which they had a right to print. This is, therefore, unlike the case of Eliot v. Jones, 66 Misc. 95, 120 NYS 989 [aff without opinion by the Appellate Division, 140 App. Div. 911 mem, 125 NYS 1119 mem], where President Eliot's name was used with respect to a publication not made by him or with his authority and which was, therefore, a use based upon a false statement of fact. The case of Collier v. Jones, 66 Misc. 97. 120 NYS 991, relied upon by the plaintiff, was not brought under the statute here invoked, but under the doctrine of unfair competition, and in the case of Herbert v. Universal Talking Mach. Co., N. Y. L. J. March 9. 1904, it appears from an examination of the record that the defendant sold graphophone records, using in connection therewith the name of the plaintiff, who had nothing whatever to do with them. I am of opinion that the defendants' acts here complained of do not come within the prohibition of the statute here invoked and that the judgment should 44 This right extends to the use of the author's nom de plume. It does not depend on the author's consent or license, but rests on the inherent right of an owner to tell the truth about his property.5 The name or nom de plume of an author is not a trademark because it is essentially descriptive, and hence is incapable of exclusive appropriation. This right to use the author's name without his consent is limited, however, to cases where it is used with entire truth.47 No one's name may be lawfully used to ascribe to him authorship of that of which he is the go for the defendants"). (2) This decision overrules the contrary decision rendered on motion for a preliminary injunction in this same case. Ellis v. Hurst, 66 Misc. 235, 237, 121 NYS 438 (where Seabury, J., said: "The defendants attempt to justify their action in using the plaintiff's name by the claim that the books "The White Mustang' and 'In Apache Country' were dedicated to the public in the absence of a copyright, and that any person has the right to republish them under the true name of the author. The plaintiff does not question the defendants' right to publish the books in the manner in which he dedicated them to the public, but I think that he has the right to the protection of the statute in order to prevent his own name being used in connection with them for trade purposes without his consent. The statute gives him the right to protection against such a use of his name without his consent, and he has done nothing to relinquish or forfeit his right. It is urged by the defendants that the Mark Twain case (Clemens v. Belford, 14 Fed. 728, 11 Biss. 459) is conclusive against the plaintiff's claim. In that case the author asserted a right independent of the statute, while in the present case the plaintiff bases his right to the relief which he seeks entirely upon the recently enacted statute. The defendants are engaged in using the plaintiff's name in violation of the statute, and in such a manner as to impair the right which the statute confers upon the plaintiff. In my judgment he is entitled to an injunction which shall restrain such illegal use of his name"). See also Eliot v. Jones, 66 Misc. 95, 96, 120 NYS 989 [aff 140 App. Div. 911 mem, 125 NYS 1119 mem] (where the use of Dr. Eliot's name in connection with the books selected for his "Five-foot Shelf of Books" was enjoined under the Civil Rights Law [L. (1903) c 132 § 21). 43. Clemens v. Belford, 14 Fed. 728. 729, 11 Biss. 459 ("Mark Twain"); Ellis v. Hurst, 70 Misc. 122, 128 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem)]. [a] Reason for rule.-"The nom de plume of an author is but the synonym of his true name and, as was said in the Mark Twain Case, 14 Fed. 728, 731, 11 Biss. 459, "The invention of a nom de plume gives the writer no increase of right over another who uses his own name' in the absence of a copyright." Ellis v. Hurst, 70 Misc. 122, 125, 128 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem), and dist Elliot v. Jones, 66 Misc. 95, 120 NYS 989 (aff 140 App. Div. 911 mem, 125 NYS 1119 mem)]. v. 44. American Law Book Co. Chamberlayne, 165 Fed. 313, 91 CCA 281. 45. Ellis v. Hurst, 70 Misc. 122, 128 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem)] (a decision at the trial or final hearing, and therefore overruling the contrary decision of Seabury, J. [66 Misc. 235. 121 NYS 4381. granting a preliminary injunction under the privacy statute). 46 not the author,48 or to hold him out as author of a production which has been substantially altered, mutilated, or garbled.49 But even in the case of a work which has been revised or altered, the original author's name may be used without his consent, or against his protest, provided the fact of revision or alteration is plainly stated so that he is not held out as the author solely responsible for the work in its revised or altered form." The author's name may be wholly omitted from the work, if the proprietor of it sees fit so to do,51 unless by express or 46. See Trade-Marks, TradeNames, and Unfair Competition [38 Cyc 835]. 47. Drummond V. Altemus, 60 Fed. 338; Lee v. Gibbings, 67 L T. Rep. N. S. 263; Landa v. Greenberg. 52 Sol. J. 354 (nom de plume). See also supra note 42; infra notes 48, 49. 50 48. Ellis v. Hurst, 70 Misc. 122, 128 NYS 144 [aff 145 App. Div. 918 mem, 130 NYS 1110 mem (aff 207 N. Y. 661 mem, 100 NE 1126 mem), and dist Collier v. Jones, 66 Misc. 97, 120 NYS 991; Eliot v. Jones, 66 Misc. 95, 120 NYS 989 (aff 140 App. Div. 911 mem, 125 NYS 1119 mem); Herbert v. Universal Talking Mach. Co., N. Y. L. J., March 9, 1904]; Byron v. Johnston, 2 Meriv. 29, 35 Reprint 851; Ridge v. English Illustrated Magazine, Ltd., 29 T. L. R. 592; Harte v. De Witt, 1 CentrLJ 360. [a] Forgery of painting.-A for-that, that one of the witnesses should gery must be of some document or writing; therefore the painting of an artist's name in the corner of a picture in order to pass it off as an original picture by that artist is not a forgery. Reg. v. Closs, 7 Cox C. C. 494. 49. Ohman v. New York, 168 Fed. 953; Drummond v. Altemus, 60 Fed. 338; Carlton Illustrators v. Coleman, [1911] 1 K. B. 771; Archbold V. Sweet, 5 C. & P. 219, 24 ECL 535; Cox v. Cox, 11 Hare 118, 45 EngCh 118, 68 Reprint 1211; Lee v. Gibbings, 67 L. T. Rep. N. S. 263; Hartement, and also with the more recent v. De Witt, 1 CentrLJ 360. An author's "name ought not to be used, against his will. It is an injury, by a faulty, ignorant and incorrect edition, to disgrace his work and mislead the reader." Millar v. Taylor, 4 Burr. 2303, 3405, 98 Reprint 201 (per Lord Mansfield). 50. American Law Book Co. V. Chamberlayne, 165 Fed. 313, 91 CCA 281; Carte v. Ford, 15 Fed. 439; Ward v. Beeton, L. R. 19 Eq. 207, 222 (per Sir R. Malins, V. C.); Archbold v. Sweet, 5 C. & P. 219, 24 ECL 535; Harte v. De Wift, 1 CentrLJ 360. See also infra § 38. "The plaintiff's contention is this: "The defendant is publishing a work as mine, which is not mine; that is to say, I am author of a book, the defendant is publishing only part of it, and such part that the result is that he is not publishing my work at all. He is bringing out what I do not sanction as my work, and cannot represent to be my work, and I therefore complain that he is using my name in connection with a work not mine.' It comes to this: Is the book the plaintiff's or not? It is avowedly only a part of it. It is a substantial part, so that it may be called the plaintiff's? It is so unless the mutilations are such as to injure the plaintiff's reputation. In other words, it is so unless the mutilations are such as to give the plaintiff a right of action in a case of libel." Lee v. Gibbings, 67 L. T. Rep. N. S. 263, 265 (per Kekewich, J.). [a] An explanatory notice, in such cases, should be on the title page where it will be likely to be noticed, and should not be concealed in the body of the book. Harte v. De Witt, 1 CentrLJ 360. [b] New editions of law books"The question for your consideration is, whether a person buying this book would suppose that it was edited by the plaintiff. The treatises prepared by the plaintiff had obtained a good reputation, but, as the defendant had bought the copyright of this work, he had a right to publish a third edition; however, this third edition has many errors and mistakes, probably occasioned by negligence and haste. On the part of the defendant, it is contended, that this edition does not profess to be edited by the plaintiff. In point of law, I have told you that there are many errors and mistakes in it; and the plaintiff says that his credit as an author will be injured by these mistakes. The defendant, to shew that it does not profess to be of the plaintiff's editing, has called several law-booksellers, who say, that, looking at the title page and address, they should know that it was not prepared by him. However, it is not quite consistent with have informed the purchasers that it was not edited by the plaintiff. I must say, that, looking at the title page alone, I should not have been struck by the change in the placing of the name; perhaps, looking at the addresses also, I should have come to the same conclusion that the booksellers do. It appears that the plaintiff had sold the copyright to the defendant, and a copyright is worth nothing unless future editions are to be published with the alterations made in the law by Acts of Parliadecisions, if the work be a law book, and with the recent discoveries, if the work be on any other science. I think that the defendant had a fair right to expect that the plaintiff would have edited the future editions; but, for what reason we know not, he has refused to do so; which clearly authorized the defendant to have another edition prepared by some one else; indeed, another complaint against the plaintiff has been, that he himself has published the new acts with comments; however, that could be no infringement of this copyright, as it related to matter which took place subsequently to the sale of the copyright. The question of fact is this, whether the third edition would be understood by those who bought it to be the work of the plaintiff; for, if so, I think the errors are such as would be injurious to the plaintiff's reputation. If you are of opinion that the third edition would be understood by those who bought it to have been prepared by the plaintiff, the plaintiff is entitled to a verdict; but if you are of opinion that persons using reasonable care would think that this third edition was not prepared by the plaintiff, your verdict should be for the defendant." Archbold v. Sweet, 5 C. & P. 219, 225, 24 ECL 535 (per Lord Tenterden, C. J., in summing up). 51. Mallory v. Mackaye, 86 Fed. 122 [mod on other grounds 92 Fed. 749, 34 CCA 6531; De Bekker v. Frederick A. Stokes Co., 168 App. Div. 452, 455, 456, 153 NYS 1066 [mod on other grounds 157 NYS 576 (aff 219 N. Y. 573 mem, 114 NE 1064 mem)]; Jones v. American Law Book Co.. 125 App. Div. 519. 109 NYS 706; Clemens v. Press Pub. Co.. 67 Misc. 183. 122 NYS 206; Crookes v. Petter, 6 Jur. N. S. 1131. See also infra § 38. "The plaintiff was not entitled to have his own name appear in the book. There was no stipulation to expose the authorship." De Bekker v. Frederick A. Stokes Co., supra (where Jenks, P. J., concurring also said: "I concur. It was contended that there was injury in that the name of the plaintiff was not associated with his work by the publishers. But there is no provision therefor in the contract. I think there is no implication of such right when a contract is silent, especially when the work is of the character of an encyclopedia. But this contract is not only silent, but specifically provides that the work is at present entitled Stokes' Encyclopedia of Music.' The name of an editor is not necessarily a part of the title. See Crookes v. Petter, 6 Jur. N. S. 1131, which is also an authority upon the general proposition"). 52. Mallory y. Mackaye, 86 Fed. 122 [mod on other grounds 92__Fed. 749, 34 CCA 653]; De Bekker v. Frederick A. Stokes Co., 168 App. Div. 452, 153 NYS 1066 [mod on other grounds 157 NYS 576 (aff 219 N. Y. 573 mem, 114 NE 1064 mem)]; Jones v. American Law Book Co., 125 App. Div. 519, 109 NYS 706; Crookes v. Petter, 6 Jur. N. S. 1131. [a] Construction of contract.(1) A contract of general employment to prepare articles, or parts of articles, for publication in an encyclopædia, which stipulates for editing and revision by the employer, precludes the right of the employee to insist that his name appear as author in connection with the publication of matter written by him. Jones v. American Law Book Co., 125 App. Div. 519, 521, 109 NYS 706 (where the court said: "Such a contract is very different from one with an author to write a book or a play, even though it is to be produced within a given time and to be paid for at so much a page. Such a contract could very well be considered as contemplating that the author should have his name appear and thus enjoy whatever reputation the learning or brilliancy of the work might give him, although he retained no right of future publication"). (2) The right to make changes, alterations, and editorial revision in an article produced for publication under a contract which is silent as to the use of the author's name negatives the idea that plaintiff's name was to appear as author of each article which he wrote. Jones V. American Law Book Co., supra. (3) "The plaintiff agreed to do any writing or compiling of entire parts of articles which the defendant might direct. If he had written a portion of an article on any given subject he would not have been entitled to have his name appear as author of that portion or as a Colaborer with the principal author." Jones v. American Law Book Co., supra. (4) "Even the matter-of-fact attitude of the law does not require us to consider the sale of the rights to a literary production in the same way that we would consider the sale of a barrel of pork. or While author's name in connection with altered or garbled versions of his work.55 But as such a wrong is not an invasion of property, and is in effect merely a libel affecting literary reputation, the right to an injunction in such cases has been denied,56 in accordance with the general rule that there is no jurisdiction in equity to enjoin a libel.57 An action at law for damages will lie of course to recover any damages sustained.58 the parties are to be determined, primarily, by the contract which they make, and the interpretation of the contract is for the court. If the intent of the parties was that the defendant should purchase the rights to the literary property and publish it, the author is entitled not only to be paid for his work, but to have it published in the manner in which he wrote it. The purchaser cannot garble it or put it out under another name than the author's; nor can he omit altogether the name of the author, unless his contract with the latter permits him so to do. The position of an author is somewhat akin to that of an actor. The fact that he is permitted to have his work published under his name, or to perform before the public, necessarily affects his reputation and standing and thus impairs or increases his future earning capacity. As I interpret the contract made between these parties, their intent was that the plaintiff should sell his work to the defendant and the defendant should publish it under the author's name. The action of the parties indicates the interpretation which they placed upon it." Clemens v. Press Pub. Co., 67 Misc. 183, 184, 122 NYS 206 (per Seabury, J. But Gavegan, J., held that title having passed, the author could neither compel nor prevent publication either with or without his name. The last remaining judge (Lehman) dissented on other grounds, so no two agreed on the same doctrine). (5) Where the agreement between the proprietors and the editor provided that the title should not be altered without mutual consent, and the name of the editor was placed upon the title-page, and the proprietors afterward discontinued placing it there, the court refused to restrain them by injunction from omitting it in future, on the ground that the name of the editor on the title-page is no part of the title. Crookes v. Petter, 6 Jur. N. S. 1131, 1133 (where the court said: "The defendants say that they have not altered the title; and it is very difficult to say they have. It is published now under the title of "The Photographic News: a Weekly Record of the Progress of Photography.' the name of the editor necessarily a part of the title? I have never known it so laid down, and certainly it would not be so treated in the case of a breach of copyright. It does not appear therefore, that any injunction should be granted upon this part of the case. When Mr. Dickinson applied to me in chambers ex parte for an injunction, I asked him if there was any part of the contract by which the defendants undertook that the name of the plaintiff should appear as editor. It appeared that there was no such stipulation in the written agreement. If it had, then, if I could not have enforced the contract specifically, I would have restrained the defendants from publishing any copy of the work not containing the name of the plaintiff as editor, so long as he was willing to tender his services as editor"). Is an author may write to earn his liv- were under similar contracts, or that the parties contracted with reference to such custom. Jones v. American Law Book Co., 125 App. Div. 519, 109 NYS 706. 53. Mallory v. Mackaye, 86 Fed. 122 [mod on other grounds 92 Fed. 749, 34 CCA 653]; Jones v. American Law Book Co., 125 App. Div. 519, 109 NYS 706. See also supra note 51. [a] Rule applied.-An author who has sold his rights in a play cannot thereafter insist that his name be used in announcements and advertisements thereof, in the absence of any contract to that effect. Mallory v. Mackaye, 86 Fed. 122, 123 [mod on other grounds 92 Fed. 749, 34 CCA 653] (where the court said: "What Mackaye became dissatisfied about, and for which he claimed to rescind, was a changing of rates of admission that he deemed injurious, and the omission of his name from announcements and advertisements that he thought intentionally and needlessly humiliating, and perhaps justly so, and other minor matters; but all were within the ownership and direction given to Mallory by the contract, and seem to have fallen short of being any adequate justification for departing from such an important engagement, and taking the play with him"). 54, Right to control publication see supra § 6. 55. Byron v. Johnston, 2 Meriv. 29, 35 Reprint 851. See Chamberlayne v. American Law Book Co., 163 Fed. 858 (where a preliminary injunction was denied, but only on.considerations governing preliminary as distinguished from final injunctions). 56. Cox v. Cox, 11 Hare 118, 45 EngCh 118, 68 Reprint 1211; Lee v. Gibbings, 67 L. T. Rep. N. S. 263. 57. See Injunctions [22 Cyc 900]. 58. Ohman v. New York, 168 Fed. 953; American Law Book Co. V. Chamberlayne, 165 Fed. 313, 316, 91 CCA 281; Archbold v. Sweet, 5 C. & P. 219, 24 ECL 535; Lee v. Gibbings, 67 L. T. Rep. N. S. 263; Ridge v. English Illustrated Magazine, Ltd., 29 T. L. R. 592. "If he has sustained damage because his article has been published in a mutilated or altered form or with some misrepresentation as to its authorship, he may, if he can prove his allegations, recover in an action for libel." American Law Book Co. v. Chamberlayne, supra. a [a] Illustration.-Plaintiff, a writer of reputation, sued defendants for damages for publishing in their magazine under plaintiff's name story of which he was not the author. Plaintiff alleged that the story was of inferior quality, and being published as by him was damaging to his reputation. He recovered a verdict. Ridge v. English Illustrated Magazine, Ltd., 29 T. L. R. 592, 593 ("Mr. Justice Darling, in summing up, said the case raised a curious and difficult question and was quite out of the common run of actions for libel. If they came to the conclusion that any one reading the story would think the plaintiff a mere commonplace scribbler they could give him damages for libel. It was a nice question, but he thought that was good law; if he was wrong he could be set right by the Court of Appeal. And on the claim for passing off, if they thought the facts proved and [§ 25] C. Persons Entitled-1. Author and Creator. The author, artist, or composer is primarily entitled to the property in what he has created by the exercise of knowledge, taste, labor, and skill.59 The rights of any other person are derivative from him.60 He may prevent or redress by legal remedies any publication or use made without his consent or against his will.61 [26] 2. Transferee and Assignee. The common-law intellectual property right is transferable by assignment or devolution.62 The owner, by such transfer of the literary property in an unpublished manuscript, may restrain an unlicensed publication, and his right is not affected by the fact that he is not the author of it.63 [27] 3. Joint Owners or Authors. Literary property may be held in joint ownership, and each owner will be protected in his property.64 It is that damage must certainly ensue though it was not capable of present proof, they could find for the plaintiff with damages. As to the conduct of Gubbins, of course it was not right; but they knew that Bacon was supposed to have written stuff as Shakespeare, and there was the case of Chatterton, who was now considered one of the heroes of English literature. Perhaps Mr. Gubbins would be considered one of those heroes some day. The jury retired for 20 minutes and then found for the plaintiff, with damages £150"). 59. See cases passim. 60. 61. See infra §§ 26, 33-39. See supra § 6; infra §§ 60-64. 62. 63. 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]; Bartlett v. Crittenden, 2 F. Cas. No. 1,076, 5 McLean 32. 64. Maurel v. Smith. 220 Fed. 195; Herbert v. Fields, 152 NYS 487; Levy v. Rutley, L. R. 6 C. P. 523. See Hole v. Bradbury, 12 Ch. D. 886, 894 (where Canon Hole prepared the letter press and Leach the drawings of "A Little Tour in Ireland"). See also infra § 147. 65. Hackett v. Walter, 80 Misc. 340, 142 NYS 209; Fleron v. Lackaye, 14 NYS 292; French v. Maguire, 55 HowPr (N. Y.) 471, 478. manu "To protect a person in the possession of an unpublished script of this description the law does not require that it shall be the exclusive work of one individual. It may be that of one or many acting in cooperation, and whichever may be the case the right is substantially the same, and the person is equally entitled to the protection of courts of justice. The same reasons that will induce security to the individual will extend it to all whose joint action may contribute to the result finally attained." French v. Maguire, supra. 66. Maurel v. Smith, 220 Fed. 195; French v. Maguire, 55 HowPr (N. Y.) 471. 67. Maurel v. Smith, 220 Fed. 195; Herbert v. Fields, 152 NYS 487; Levy v. Rutley, L. R. 6 C. P. 523 (dramatic composition). "If two persons agree to write a piece, there being an original joint design, and the co-operation of the two in carrying out that joint design, there can be no difficulty in saying that they are joint authors of the work, though one may do a larger share of it than the other." Levy v. Rutley, L. R. 6 C. P. 523, 530. [a] Rule applied.-(1) Where it was agreed between plaintiff and defendant that defendant would write a comic opera, for which plaintiff wrote the scenario, and, although defendant made many changes in the plot, he used the scenario and adopted the whole framework and scheme thereof, they were joint au [13 C. J.-31] 65 not necessary that the product shall be exclusively the work of one individual; it may be the work of one or of many." Whoever contributes in an intellectual way to the final result has an interest or 66 To conproperty therein which will be protected." stitute joint authorship there must be a common design to the execution of which the several persons contribute.67 But mere alterations, additions, or improvements, whether with or without the sanction of the author, will not entitle the person making them to claim to be a joint author of the work.68 An employer is not a joint author with one employed to compose a work, although he suggests the subject and makes changes and additions.69 One who contributes to such a joint production does not retain any several ownership in his contribution; that merges in the whole, and the contributor becomes one of the coöwners of the whole.70 Either has the thors, with the rights and obligations implied by law from such relation. Maurel v. Smith, 220 Fed. 195, 199 (where Learned Hand, J.. said. "I have been able to find strangely little law regarding the rights of joint authors of books or dramatic compositions. The only case in the books in which the matter seems to have been discussed is Levy v. Rutley, (L. R. 6 C. P. 523.) That was a case in which Levy had employed Wilks to write a play for him, which Wilks did, and the plaintiff, finding some of the incidents were objected to by members of the playing company, made various alterations and additions; one scene being entirely new. The drama thus altered the plaintiff produced, and took from Wilks a receipt for a certain sum down 'for my share, title. and interest as co-author with him in the drama.' Wilks died, the defendant pirated the drama, and Levy sued. It was held that he could not recover, as his work did not constitute him a joint author, and the judges discussed the question of joint authorship, and each concluded that it would arise only when several parties contributed their labor to the production by common and preconcerted design. Keating, J., at page 529. used the following language, which has often been quoted: 'If two persons undertake jointly to write a play, agreeing on the general outline and design and sharing the labor of working it out, each would be contributing to the whole production, and they might be said to be joint authors of it; but to constitute joint authorship there must be a common design.' Montague Smith, J., at page 530, says: 'But I take it that, if two persons agree to write a piece, there being an original joint design and the co-operation of the two in carrying out that joint design, there can be no difficulty in saying they are joint authors of the work, though one may do a larger share than the other.' I cannot doubt that the production of this opera was the result of such a joint design"). (2) Where the book of a musical comedy was adapted from a foreign play by one author, the lyrics were composed by another, and the music for the lyrics was composed by a third, the composer of the music was not a joint author with the author of the book. Herbert v. Fields, 152 NYS 487. 489 (where the court said: "This situation is radically different from that disclosed in the case cited on behalf of the plaintiff, namely, Maurel v. Smith, 220 Fed. 195, opinion by Judge Hand, in the federal District Court, February 2, 1915. There the plaintiff, as creator of a scenario upon which the play was ultimately constructed, was treated as a joint creator of the final product; but the indissoluble identification of the scenario with the final play was manifest, indeed admitted. In the case at bar it is quite clear that Smith's production is a complete play, namely, the American Adaptation of a German farce. Of course, it is quite possible that music might be so composed for use with that play as to make a complete and inseparable whole out of words and music; but the fact that Herbert and Smith did not collaborate, that, on the contrary, Hobart composed additional and separate lyrics, to which alone apparently the music of the plaintiff applies, differentiates this case clearly from the Maurel Case"). "Work of joint authorship" see infra 240 text and note 86. 68. Maurel v. Smith, 220 Fed. 195; Shelley v. Ross, L. R. 6 C. P. 531 note; Levy v. Rutley, L. R. 6 C. P. 523; Leader v. Purday, 7 C. B. 4, 62 ECL 4, 137 Reprint 2. 69. Eaton v. Lake, 20 Q. B. D. 378; Levy v. Rutley, L. R. 6 C. P. 523; Shepherd v. Conquest, 17 C. B. 427, 84 ECL 427, 139 Reprint 1140. [a] Case not within rule.-"That Harry B. Smith used the scenario in preparing the libretto is in my judg ment proved beyond doubt by a comparison between the completed libretto and the scenario itself. He made many changes in the plot, but no one can read the two without seeing that the whole framework and scheme had been adopted from the scenario itself. The defendants have with much elaboration insisted upon these changes, but they in no sense modify the fundamental fact that the idea of the plot originated with the plaintiff. I do not think it necessary to go into the details of this comparison, for the records remain for any one to read. It is enough to say that by changes, omissions, additions, and alterations a subsequent author cannot avoid the debt which he owes to the maker of the plot, or treat him merely as the suggester of the piece, under Shepherd v. Conquest, 17 C. B. 427, 84 ECL 427, 139 Reprint 1140. A scenario followed as much as this goes into the bone and flesh of the production." Maurel v. Smith, 220 Fed. 195, 199. 70. Maurel v. Smith, 220 Fed. 195. [a] Lyrics incorporated in opera. -Where plaintiff and defendant H agreed that such defendant should write a comic opera, for which plaintiff wrote the scenario, and H engaged defendant R to write the lyrics, the lyrics, when united with dialogue, plot, and music into one composition, became such a part thereof that plaintiff had an interest therein, although they had slight or no relation to the plot, and although R in several instances simply took old songs which he had already written and placed them in the libretto, and the subsequent publication of such songs separate from the opera did not break the original unity or defeat plaintiff's rights. Maurel v. Smith, 220 Fed. 195, 201 (where the |