author, subject only to the rule that the author of the work in its original form must not be held out as the responsible author of it in its altered form,16 and that the work must not be put out in a way so as to constitute unfair competition.17 Published literary property cannot be protected as such by a trade-mark; it must be copyrighted if it is to be protected.1 The publication of a drama, opera, or musical composition in book form destroys the common-law play right, or right to control representation of it upon the stage.1 The rights of licensees fall with those of the licensor when the latter makes a general publication.20

18

19

production, such as is made by printing and offering copies for sale, or otherwise, dedicates the work to the public unless the sole right to reproduce is secured to the originator thereof, or his assignee, under the copyright statutes, there may be a limited publication by communicating the contents by reading, representation, or restricted private circulation, and it is well settled that such limited or qualified publication will not abridge the rights of the owner any further than necessarily results from the nature and extent of such limited use as he has made, or allowed others to make, of his work.21 Such restricted use of a work as does not amount to a dedication thereof to the public will not interfere with the right subsequently to obtain eign author sold all his common-law | may communicate the contents of his rights in a dramatic composition for the United States, and thereafter published the work in such foreign state, the common-law rights previously conveyed were thereby destroyed, notwithstanding such publication was in violation of a contract between the author and the purchaser. Daly v. Walrath, 40 App. Div. 220, 222, 57 NYS 1125 (where the court said: "The plaintiff had acquired the author's common-law right of representing the play in this country; but that right became the property of anyone who chose to exercise it, when the original play was subsequently published and sold in book form with Sudermann's authority").

[43] (2) Limited or Qualified Publication. While an unqualified publication of an intellectual law for retaining her property in and the control of said story, and having, in effect, allowed the same to become public property, she cannot legally claim protection against the consequences-unpleasant though they may be to her-resulting from the exercise by other persons of the right, become common to all, of republishing said story, in the exercise of which right the persons so exercising it are under no legal obligation to conform to her taste or preferences in the matter of the title under which said story should be published." Angers v. Leprohon, 22 Que. Super. 170, 173 (where, however, some weight was given to the fact that the work was originally published under a pseudonym and it did not appear that any portion of the public knew who was the real author).

16. See supra § 24.

17. Bamforth V. Douglass Post Card, etc., Co., 158 Fed. 355. See Trade-Marks, Trade-Names, and Unfair Competition [38 Cyc 831].

18. Atlas Mfg. Co. v. Street, 204 Fed. 398, 402, 122 CCA 568, 47 LRA NS 1002; Bamforth V. Douglass Post Card, etc., Co., 158 Fed. 355.

"Literary property in a book cannot be protected by trade-mark, nor otherwise than by copyright." Atlas Mfg. Co. v. Street, supra [foll Black v. Ehrich, 44 Fed. 793].

ele

21. U. S.-Bobbs-Merrill Co. V. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]; McDearmott Commn. Co. v. Chicago Bd. of Trade, 146 Fed. 961, 77 CCA 479. 7 LRANS 889, 8 AnnCas 759 [aff 143 Fed. 1881; Werckmeister v. American Lith. Co., 142 Fed. 827; Werckmeister V. American Lith Co., 134 Fed. 321, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244]; Parton v. Prang, 18 F. Cas. No. 10.784, 3 Cliff. 537.

Ill.-Frohman v. Ferris, 238 Ill. 430, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492].

Mass.-F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 NE 204, 97 AmSR 412, 60 LRA 810.

N. J.-New Jersey State Dental Soc. v. Dentacura Co., 57 N. J. Eq. 593, 41 A 672 [aff 58 N. J. Eq. 582 mem, 43 A 1098 mem]; Aronson v. Baker, 43 N. J. Eq. 356, 12 A 177 ("Erminie").

[a] Author's trade-mark-"The plaintiff insists that he has a valid trade-mark, consisting of an phant's head, by which his productions have been known and protected and that the defendants have infringed by placing an elephant's head upon thirty sets of the Brushwood' edition. The proposition that an author can protect his writings by a trade-mark is unique and, at first blush, seems somewhat startling. It is certainly offensive to the aesthetic and poetic taste, to place such poems as the 'Recessional' and "The Last Chantey' in the same category with pills and soap, to be dealt in as so much merchandise. We do not intend to decide that such a trade-mark is sanctioned by the law, but even if it were, it is manifest that the mark does not lose its characteristics because used to desig-goner Title Co., 49 Tex. Civ. A. 144, nate an unusual variety of 'goods.' In other words, the author, assuming that he may have such protection, must comply with the law if he would have a valid trade-mark." Kipling v. Putnam, 120 Fed. 631, 635, 57 CCA 295, 65 LRA 873.

Trade-marks generally see TradeMarks, Trade-Names, and Unfair Competition [38 Cyc 674]. 19. See infra § 51. 20.

Daly v. Walrath, 40 App. Div. 220. 57 NYS 1125.

[a] Reason for rule."If an author could thus grant licenses for all the world, except his own country, and then publish in his own country without such publication affecting the rights of his licenses. there would be but little need of an international copyright law." Daly v. Walrath, 40 App. Div. 220, 224, 57 NYS 1125.

work under restrictions without forfeiture of the right. This communication of contents under restriction, known as a restricted or limited publication, is illustrated by lectures to classes of students, dramatic performances before a select audience, exhibitions of paintings in private galleries, private circulation of copies of manuscript, etc." BobbsMerrill Co. v. Straus, 147 Fed. 15, 18, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U, S. 339, 28 SCt 722, 52 L. ed. 1086]. (2) "The rule which I think should be adopted may be stated as follows: that the owner of a dramatic or musical composition may, like the owner of any other kind of property, do with his own as he pleases; he may retain it for his own use and benefit, or he may give it to the public out and out, or he may make a limited or partial dedication of it, and when his act of dedication is of such a character as to show unmistakably that he does not intend to abandon all right, but simply to give the public the right to have a limited use of his property, or to use it in a particular way, and to reserve to himself whatever is not plainly given, the public acquire the right to use his property to the extent of his dedication, but nothing more, and any use of it in excess of the extent dedicated is in violation of his reserved rights. To illustrate: if the composer of an orchestral score of an opera arranges his score for use on the piano, either in whole or in part, and then causes his arrangement to be published and sold, he thereby donates his music to the public for use on the piano, but that is the whole extent of his gift. He does not thereby authorize another composer to make a new orchestration of his music, and perform it in public for profit. Such a use of his gift would very likely seem to him to be a piratical abuse of his liber

N. Y.-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]; O'Neill v. General Film Co., 171 App. Div. 854, 157 NYS 1028 [modality." Aronson v. Baker, 43 N. J. 152 NYS 599]; Keene v. Clarke, 28 N. Y. Super. 38; Kiernan v. Manhattan Quotation Tel. Co., 50 How Pr 194; Oertel v. Wood, 40 HowPr 10. Tex.-Vernon Abstract Co. v. Wag

107 SW 919.

Eng.-Prince Albert v. Strange, 1 Hall & T. 1. 47 Reprint 1302, 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint

1171.

See also cases infra §§ 46-56.
"It is well established that the
private circulation of information or
literary composition, in writing or
in print, for a restricted purpose, is
not a publication which gives the
public a right to use it." F.
Dodge Co. v. Construction Informa-
tion Co.. 183 Mass. 62, 65, 66 NE 204,
97 AmSR 412. 60 LRA 810.

W.

[a] Judicial statements and illustrations of rule.-(1) "The owner of the common-law copyright has a perpetual right of property and the exclusive right of first general publication, and may, prior thereto. enjoy the benefit of a restricted publication without forfeiture of the right

[b] Rule applied.-Where a for-of

general publication. Thus, he

Eq. 365, 369, 12 A 177. (2) "We
hold that the effect of the publica-
tion relied upon by the appellants is
to be determined by inquiring
whether it is so restricted in point
of place, purpose, and persons as to
be consistent with the retention by
the appellee of its proprietary
rights, or is so general or unquali-
fied as to indicate an intent to sur-
render or dedicate them to the pub-
lic at large.
Tested in this
way, the facts before recited admit
of but one conclusion. The publi-
cation relied upon consists alto-
gether in the posting of the quota-
tions by those who subscribe for
them. This is done in places which,
by reason of their ownership and
use, are private. Its controlling
purpose is that of stimulating and
facilitating trade with the sub-
scriber, and not of conferring a bene-
fit upon the public. It implies. of
course, a permission that in dealing
with the subscriber his patrons may
use the information which the quo-
tations contain, but not that they
may be copied and taken away or re-
produced and used elsewhere.

It

copyright therefor,22 nor will it curtail the right to prevent the unauthorized use thereof by another.2 23 There can be no limited or restricted publication under a copyright; any publication under copyright is a general publication destroying all common-law rights.2

24

[44] (3) Consent to Publication. To constitute an abandonment of the common-law property by publication the publication must be a voluntary one, made by the owner himself or by his authority; an unauthorized publication has no effect on his common-law rights.25 It is so expressly provided by the English statute,26 and also by plain.

does not make knowledge of them | general, or make them accessible to the public as of right, or render them of no further value. In short, it is so restricted as to be consistent with the retention by the appellee of its proprietary rights, and does not indicate an intent to surrender or dedicate them to the public." McDearmott Commn. Co. Chicago Bd. of Trade, 146 Fed. 961, 964, 77 CCA 479, 7 LRANS 889, 8 AnnCas759 [aff 143 Fed. 188].

V.

What constitutes a limited or a general publication see infra § 46 et

seq.

V.

22. American Werckmeister, 207 U. S. 284, 299, 28 Tobacco Co. SCt 72, 52 L. ed. 208, 12 AnnCas 595; Keene v. Kimball, 16 Gray (Mass.) 545, 77 AmD 426. 92. See also infra §

"It is only in cases where what is known as a general publication is shown, as distinguished from a limited publication which exclude the presumption that under conditions it was intended to be dedicated to the public, that the owner of the right of copyright is deprived of the benefit of the statutory provision." American Tobacco Co. v. Werckmeister, supra. 23.

American

V.

Werckmeister, 207 U. S. 284, 299, 28 Tobacco Co SCt 72, 52 L. ed. 208, 12 AnnCas 595; Bobbs-Merrill Co. v. Straus. 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]; F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 NE 204, 97 AmSR 412, 60 LRA 810; New Jersey State Dental Soc. v. Dentacura Co., 57 N. J. Eq. 593, 41 A 672 [aff 58 N. J. Eq. 582 mem, 43 A 1098 mem]; Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 ("Erminie"); Macklin v. Richardson, Ambl. 694, 27 Reprint 451, 7 ERC 66; Prince Albert v. Strange, 1 Hall & T. 1, 47 Reprint 1302, 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint 1171.

"The property of the author or painter in his intellectual creation is absolute until he voluntarily parts with the same. One or many persons may be permitted to an examination under circumstances which show no intention to part with the property right, and it will remain paired." American Tobacco Co. unimWerckmeister, supra [appr Werckmeister v. American Lith. Co., 134 Fed. 321, 69 CCA 553, 68 LRA 591]. 24. Bobbs-Merrill Co. 147 Fed. 15, 19, 77 CCA 607, 15 LRA V. Straus, NS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086].

V.

"The statute does not permit the owner of the copyright, by attempted restrictions upon the use of copies, to retain in himself forever the common-law right of first publication." Bobbs-Merrill Co. v. Straus, supra. Deposits in copyright office see infra 56.

25. Chicago Bd. of Trade v. Christie Grain, etc., Co., 198 U. S. 236, 25 SCt 637, 49 L. ed. 1031; Savage v. Hoffman, 159 Fed. 584; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]; Press

[§§ 43-46

implication in the United States statute.27 A publication by a licensee in violation of the conditions of his license is a publication without consent and does not destroy the owner's common-law right.28 But a publication by an agent acting within the course and scope of his authority, although in violation of his instructions, works a dedication.29

[§ 45] (4) Place of Publication. It is immaterial where publication takes place.3 30 abroad equally with publication at home works a Publication dedication.31

[46] 2. What Constitutes Publication-a. In General. Publication is the act of making public

Pub. Co. v. Monroe, 73 Fed. 196, 19
CCA 429 [app dism 164 U. S. 105, 17
SCt 40, 41 L. ed. 367]; Boucicault v.
Wood, 3 F. Cas. No. 1,693, 2 Biss. 34;
Crowe v. Aiken, 6 F. Cas. No. 3,441,
2 Biss. 208; Jewelers'
Agency
Mercantile
V. Jewelers'
Co.,
Weekly Pub.
155
N.
Y.
63 AmSR 666, 41 LRA 846; Palmer
241, 49 NE 872,
v. De Witt, 47 N. Y. 532, 7 AmR 480;
Daly v. Walrath, 40 App. Div. 220, 57
NYS 1125; Wall v. Gordon, 12 Abb
PrNS (N. Y.) 349; Kenrick v. Dan-
ube Collieries, etc., Co., 39 Wkly. Rep.
473; Anglo-Canadian Music Publish-
ers' Assoc. v. Dupuis, 27 Que. Super.
485, 5 Que. Pr. 351.

[a] Illustration.-While books are
stored away, if a copy should be ob-
tained surreptitiously and printed, or
the author should loan one of the
books to a friend to read and return,
and in that manner a copy of the
book should fall into the hands of
it, the author would be entitled to
someone who should attempt to print
restrain publication, for the reason
that he had not undertaken to put
within the reach of the general pub-
Jewelers' Mercantile Agency v. Jew-
lic such thoughts or facts as he may
have exposed or stated in the book.
elers' Weekly Pub. Co., 155 N. Y. 241,
49 NE 872, 63 AmSR 666, 41 LRA
846.

[b] The publication in a foreign country (1) of a play never published in the United States is not a dedication to the public, unless such publication was made with the consent of the author. Boucicault v. Wood,

(2)

The operetta "Nanon" was completed
3 F. Cas. No. 1,693, 2 Biss. 34.
in September, 1884, and a manuscript
authors to plaintiffs who before it
copy immediately transmitted by the
was written had purchased the ex-
clusive right to use it in America so
that they were the exclusive owners
manuscript before
for America and in possession of the
there
publication of any part in Europe or
was any
America. Defendants were enjoined
from performing the play as a whole,
except the orchestration, which was
or the piano score, or any part of it
defendants' work. Goldmark v. Kre-
ling, 35 Fed. 661, 662, 13 Sawy. 310.
piano score had been published in
(It appeared in this case that the
Europe, but it did not appear very
clearly, if at all, that it was with the
author's consent.
portant, since it clearly appeared
its opinion, did not deem this im-
But the court, in
that neither the score nor any part
of the operetta was published with
plaintiff's consent either in Europe
or America. Sawyer, J., said:
sold, and conveyed, any right to a
authors, certainly, could
"The
not have
third party to perform their operetta
exclusive right conveyed to Gold-
in America, so as to cut off the prior
mark and Conried. If they could not
cut them off by subsequent sale. we
do not perceive how they could do it
by a subseqent dedication to the pub-
lic by publication. In our judgment,
defendants had no right to use the
piano score, even if it had been pub-
the right of complainants had at-
lished by the authors in Europe after

tached.

We are not certain, that it was published with the consent of the authors. to be so, there was no consent of . But concede it complainants, in whom the exclusive right for vested"). Compare supra § 42 text America had already and note 7.

[c] Evidence of consent.-(1) On a motion temporarily to enjoin a vaudeville performer from singing a song from an opera which complainduce, the court may consider the fact ant claims the exclusive right to prothat the songs and pianoforte score of the opera had been published, as showing an abandonment words of the songs, although there is of the no proof that the publication was auauthors of the opera, as would be thorized by the composer and the necessary on final hearing. Savage v. Hoffman, 159 Fed. 584. that the author received and receipt(2) Proof ed for royalties from publication is evidence of consent. rath, 40 App. Div. 220, 57 NYS 1125. Daly v. Walsent of the author to a publication [d] The burden of proving conis on the party who relies on it. Daly v. Walrath, 40 App. Div. 220, 57 NYS 1125 [foll Boucicault v. Wood, 3 F. Cas. No. 1,693, 2 Biss. 34].

26. Copyright Act, 1911 (1 & 2 Geo. V c 46 § 35 (2)).

St. at L. 1075 c 320 § 62) (defining 27. Act March 4, 1909 (35 U. S. publication).

V.

28. American Press Assoc. ed. 842 mem] (which, however, was Daily Story Pub. Co., 120 Fed. 766, 57 CCA 70, 66 LRA 444 [app dism 193 U. S. 675 mem, 24 SCt 852 mem, 48 L. a copyright case).

Press Assoc.

V.

Daily Story Pub. Co., 120 Fed. 766, 57
29. American
CCA 70, 66 LRA 444 [app dism 193
U. S. 675 mem, 24 SCt 852 mem, 48
L. ed. 842 mem].
30.

Larrowe-Loisette v. O'Lough-
lin, 88 Fed. 896; Boucicault v. Wood,
3 F. Cas. No. 1,693. 2 Biss. 34.
31. American Tobacco
Werckmeister, 207 U. S. 284, 28 SCt
Co. V.
72, 52 L. ed. 208, 12 AnnCas 595; Uni-
versal Film Mfg. Co. v. Copperman,
212 Fed. 301 [aff 218 Fed. 577, 134 CC
A 3051; Savage v. Hoffman, 159 Fed.
584; Wagner v. Conried, 125 Fed. 798
(publication in Germany in the Ger-
man language); Fraser v. Yack, 116
Fed. 285. 53 CCA 563; Tribune Co. v.
Associated Press, 116 Fed. 126; Lar-
rowe-Loisette v. O'Loughlin, 88 Fed.
896; Goldmark v. Kreling, 35 Fed.
661, 13 Sawy. 310; Mikado, etc., Case,
25 Fed. 183, 23 Blatchf. 347; Froh-
man v. Ferris, 238 Ill. 430, 87 NE
327, 128 AmSR 135, 43 LRANS 639
[aff 223 U. S. 424, 32 SCt 263. 56 L.
171 App. Div. 854, 157 NYS 1028 [mod
App. Div. 220, 57 NYS 1125 (publica-
ed. 4921; O'Neill v. General Film Co.,
152 NYS 599]; Daly v. Walrath, 40
tion in Germany in the German lan-
Super. 530, 36 HowPr 222, 5 AbbPrNS
guage); Palmer v. De Witt, 30 N. Y.
130; Cocks v. Purday, 5 C. B. 860. 57
ECL 860, 136 Reprint 1118: Guichard
v. Mori. 2 Coop. t. Cott. 216, 47 Re-
Hem. & M. 597, 71 Reprint 261.
print 1134; Boucicault v. Delafield, 1

a] Consent of the author

, same title, page and note number

or known, as by offering for sale or distribution the book, picture, or other subject matter in question. The question of whether or not there has been a publication of literary or other intellectual property is of importance from two aspects: The existence of any common-law rights whatever depends upon it.33 The right to obtain a statutory copyright also depends upon it, for there can be no copyright in that which has been dedicated to the public by an unrestricted publication.34 Copyright is also initiated by publication,35 and a copyright may be lost, and a dedication effected, by a publication without the required notice of copyright.3 What will constitute either a general or a limited publication varies with the nature of the subject matter involved.37 The mode of publication, or the question as to what amounts to publication, must correspond to the nature of the right secured.38

nature of the subject matter, the character of the
communication, circulation, or exhibition, and the
nature of the rights secured are chiefly determina-
tive of the question of publication.39
The use of
the word "publication" to indicate both a "gen-
eral publication" and also a "limited publication'
is unfortunate and has led to much confusion.40
By express provision of the copyright act, works, of
which copies are reproduced for sale or distribu-
tion, are deemed to be published on the earliest date
when copies of the first authorized edition are
placed on sale, sold, or publicly distributed by or
with the authority of the proprietor." In England,
the copyright act provides that publication, in rela-
tion to any work, means the issue of copies of the
work to the public.2 Private circulation is not pub-
lication.13 Printing is not necessary to constitute a

46

publication." Printing and offering for sale con-
stitute publication.15 Exposure for sale constitutes
a publication; it is not necessary that the work be
actually sold. Whenever the public generally, or
an indefinite portion of it, are assured of access to
the work without further action on the part of the
author, a general publication has taken place. The
unrestricted sale of a single copy is a general pub-
lication.48

47

[§ 47] b. General and Limited Publication. A

ited to friends and acquaintances, or even to a class. The limitation was upon the character of the use which a subscriber could make of it. was the privilege of any and all perIt sons who desired to scribers, to obtain possession and use become subof the reference books. The fact that the publisher of the book undertook to place restrictions on the use which individual purchasers could make of it, the effect of which might be to increase rather than diminish the public demand for the book, does not constitute such a limitation as takes away from the act of the plaintiff its real character, which is publication." that of Jewelers' Mercantile Agency v. Jewelers' Weekly Pub. Co., 155 N. Y. 241, 251, 49 NE 872, 63 Am SR 666, 41 LRA 846 [rev 84 Hun 12,

32 NYS 411.

44. White v. Geroch, 2 B. & Ald. 298, 106 Reprint 376, 1 Chit. 24, 18 ECL 28. 45.

Bamforth

V.

Douglass Post

lane v. Hulton, [1899] 1 Ch. 884.

V.

46. 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]; Wright v. Eisle, 86 App. Div. 356, 83 NYS .887; Vernon Abstract Co. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919; Francis v. Feldman, [1914] 2 Ch. 728 exposed for sale on counter in retail (copies of song department of publisher's business premises); Hanfstaengl v. [1905] 1 Ch. Smith, 519; McFarlane Hulton, [1899] 1 Ch. 884; Chatterton v. Cave, L. R. 10 C. P. 572; West v. Francis, 5 B. & Ald. 737, 7 ECL 402, 106 Reprint 1361.

V.

[§§ 46-47

general publication consists in such a disclosure, communication, circulation, exhibition, or distribution of the subject matter, tendered or given to one or more members of the general public, as implies an abandonment of the right of copyright or its dedication to the public." one made under restrictions limiting the use or enA limited publication is joyment of the subject matter to definitely selected individuals, or to a limited ascertained class, or to some particular occasion or definite purpose.

manuscript map, one
placed in a public office and others
of which he
of which he sold to third persons,
there was a dedication sufficient to
terminate his
therein. Rees v. Peltzer, 75 Ill. 475.
common-law rights
(2) While the mere distribution of
selected individuals for
a limited number of copies to
lication resulting in a
purpose does not constitute a pub-
a special
without discrimination
offering the work so that the public
dedication,
has an opportunity of enjoying it
of persons
does constitute a general publication.
Wagner v. Conried, 125 Fed.
(opera Parsifal).
798
abstracts
(3) An owner of
of
furnishes
title, who
abstracts
either
public who desire them, makes such
furnish them to those of the general
or offers to
a publication of sheets forming a
part of his abstracts as
him of the exclusive right thereafter
deprives
to multiply copies thereof, although
the sale or offer to sell is to persons

purpose.

V.

V.

49

50

And

may

("Erminie"); Vernon Abstract Co. v. Baker, 43 N. J. Eq. 365, 12 A 177 144, 107 SW 919; Thompson v. StanWaggoner Title Co., 49 Tex. Civ. A. hope, Ambl. 737, 27 Prince Albert v. Strange, 2 De G. & Reprint 476; Sm. 652, 64 Reprint 293, 1 Hall & T. 1. 47 Reprint 1302, 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint Queensberry v. Shebbeare, 2 Eden wood, 2 Meriv. 435, 35 Reprint 1006. 329, 28 Reprint 924; Southey v. Sher1171; "Prior to such publication, a perrestrict the use or enjoyment of such son entitled to copyright subject dividuals or a limited, ascertained to definitely selected inclass, or he may expressly or by definite purpose. A publication under such subject to some implication confine the enjoyment of occasion or such restrictions is a limited publication, and no rights inconsistent with adverse to such are surrendered." Werckmeister restrictions American Lith. Co., 134 Fed. 321, 126 Fed. 244].

or

V.

[a] "The test is whether there is or is not such a surrender as permits the absolute and unqualified enjoyment of the subject-matter by the public or the members thereof to whom it may Werckmeister v. American Lith. Co., be committed." 134 Fed. 321, 325, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244].

a

Card, etc., Co., 158 Fed. 355; McFar- procuring abstracts for the special 326, 69 CCA 553, 68 LRA 591 [rev purpose of examining the title to specific property, and for no other Vernon Abstract Waggoner Title Co., 49 Tex. Civ. A. Co. 144, 107 SW 919. 48. Bobbs-Merrill Co. 147 Fed. 15, 77 CCA 607, 15 LRANS V. Straus. 1086]; G. & C. Merriam Co. v. United 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. Dictionary Co., 140 Fed. 768 [rev on other grounds 146 Fed. 354, 76 CCA 470 (aff 208 U. S. 260, 28 SCt 290, 52 L. ed. 478)]; Werckmeister American Lith. Co., 134 Fed. 321, 69 244]; CCA 553, 68 LRA 591 [rev 126 Fed. Pub. Co., 33 Fed. 381. Gottsberger V. Aldine Book Werckmeister, 207 U. S. 284, 28 SCt 49. American Tobacco Co. V. 72, 52 L. ed. 208, 12 AnnCas 595; Rees v. Peltzer, 75 Ill. 475. "A general publication consists in such a disclosure, circulation, exhibition, communication, tion of the subject of copyright, or distributendered or given to one implies an abandonment of the right members of the general public, as of copyright or its dedication to the public." Werckmeister v. American 553, 68 LRA 591 [rev 126 Fed. 244]. Lith. Co., 134 Fed. 321, 326, 69 CCA

"It is not necessary that the book be actually sold; it is sufficient if it be offered to the public. The act of publication is the act of the author, and cannot be dependent upon the act of the purchaser. The actual sale of a copy is evidence that it has been offered to the public, but that fact may also be shown by other evidence." Jewelers' Mercantile Agency v. Jewelers' Weekly Pub. Co., supra.

[a] Reason for rule-"The reason why exposing for sale or offering gratuitously to constitutes publication, is stated in the general public the last part of the rule as follows: 'So that any person may have an opportunity of enjoying that which copyright is intended to be for secured.' And this lies at the foundation of all decisions reason, which upon this subject, is applicable to this situation." Jewelers' Mercantile Agency v. Jewelers' Co., 155 N. Y. 241, 251, 49 NE 872, Weekly Pub. 63 AmSR 666, 41 LRA 846 [rev 84 Hun 12. 32 NYS 41]. 47. Werckmeister Lith. Co., 134 Fed. 321, 69 CCA 553, American 68 LRA 591 Wagner [rev 126 Fed. 244]; v. Conreid. 125 Fed. 798; D'Ole v. Kansas City Star Co., 94 Fed. 840; Rees v. Peltzer, 75 Ill. 475; Jewelers' Mercantile Agency Jewelers' Weekly Pub. Co.. 155 N. Y. 241, 49 NE 872. 63 AmSR 666, LRA 846 [rev 84 Hun 12, 32 NYS 41 41]; Vernon Abstract Co. v. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919. [a] draftsman made several copies of a Rule applied.-(1) Where a

particular design from
public records into an atlas, and
the
without taking out any copyright
made several copies of the original
atlases, sold several, and placed one
in a form suitable for comprising
public use, where any part or the
copy in the hands of the city for
whole of it could be copied and used
by any citizen, placing no restric-
tions on their use, it was held that
the author thereby dedicated the
maps to public use and consequently
lost his common-law proprietorship
in them, and that they became public
property. Rees v. Peltzer, 75 Ill.
475.
50. Werckmeister
Lith. Co., 142 Fed. 827; Werckmeister
V. American
v. Amercian Lith. Co., 134 Fed. 321.
69 CCA 553, 68 LRA 591; Wagner v.
Crittenden, 2 F.
Conried, 125 Fed. 798; Bartlett V.
Cas. No. 1,076, 5
McLean 32; New Jersey State Dental
Soc. v. Dentacura Co., 57 N. J. Eq.
593. 41 A 672 [aff 58 N. J. Eq. 582
mem, 43 A 1098 mem]; Aronson v.

[b] "The distinction between public circulation of written copies and a restricted munication of or private comtheir existed from the earliest times and contents has was for some published work being undoubted, it before the use of printing. Keene v. purposes recognized Wheatley, 14 F. Cas. No. 7,644. "The author's right of property in his unhas also been settled that he may communicate it to others under such the continuance of the right. limitations as will not interfere with has," as was said by Lord Broughton "He in Jefferys v. Boosey, 4 H. L. Cas. 815, 962, 10 Reprint 681, "the unmunicate it, and, communicating, he disputed right to his manuscript; he may withhold, or he may may limit the number of persons to annexed conditions he may proceed whom it is imparted, and impose such restrictions as he pleases upon their use of it. The fulfilment of the to enforce, and for their breach he may claim compensation." his work, but he may legitimately not print and sell without publishing He canimpose restrictions which will prevent

com

copies for private perusal or by
communication be made by giving
its publication, whether the
recitation before a select audience.
In the latter case the retention of
being either a matter of contract or
the author's right depends upon its
audience are admitted for the pur-
implied condition,
that the

an

pose

or

amusement, and not in order that
of receiving instruction
they may take a full note of what
of the public at large.'
they hear, and publish it for their
own profit. and for the information
Sime. 12 App.
Caird v.
Cas. 326."
meister v. American Lith. Co., 134
Werck-
Fed. 321, 328. 69 CCA 553, 68 LRA
591 [rev 126 Fed. 244].

literary
[c] Rule applied. (1) "When
work is
particular purpose, or to a limited
exhibited for

, same title, page and note number

no rights inconsistent with or adverse to such re-
strictions are surrendered.51 The intention with
which the disclosure or communication was made is
a material circumstance,"
,52 but not necessarily con-
trolling.53 Where there is otherwise a general pub-
lication, a mere notice of restrictions is of no
effect.54

[§ 48] C. Of Particular Subject Matter-(1)
Manuscripts. To permit a copy of manuscript to
be made, or to make a gift of a copy thereof, is
not such publication as will amount to an aban-
donment, and the person receiving the copy cannot
multiply copies published, or make any other use of
the work, except with the consent of the owner.55
So merely exhibiting a manuscript to others will
not deprive the author of his exclusive rights.56
[§ 49] (2) Books. Mere printing in itself does

number of persons, it will not be construed as a general gift or authority for any purpose of profit or publication by others. An author retains his right in his manuscript until he relinquishes it by contract, or some unequivocal act indicating an intent to dedicate it to the public." Palmer v. De Witt, 47 N. Y. 532, 543, 7 AmR 480 (quot Aronson v. Baker, 43 N. J. Eq. 365, 369, 12 A 177]. (2) A restricted or limited publication which will not work a forfeiture of common-law rights is illustrated by lectures to classes of students, dramatic performances before a select audience, exhibitions of paintings in private galleries, private circulation of copies of manuscript, etc. Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086].

51. Chicago Bd. of Trade V. Christie Grain, etc., Co., 198 U. S. 236, 25 SCt 637, 49 L. ed. 1031; Werckmeister v. American Lith. Co., 134 Fed. 321, 69 CCA 553, 68 LRA 591 (reviewing cases); Frohman v. Ferris, 238 Ill. 430, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492]; Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 (“Erminie"). See also cases supra § 43.

[a] An author may privately circulate copies of his work among his friends without parting with his control over his intellectual production. Prince Albert v. Strange, 2 De G. & Sm. 652, 64 Reprint 293, 1 Hall & T. 1. 47 Reprint 1302, 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint 1171.

52. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; New Jersey State Dental Soc. V. Dentacura Co., 57 N. J. Eq. 593, 41 A 672 [aff 58 N. J. Eq. 582 mem, 43 A 1098 mem].

[a] "It is a fundamental rule that to constitute publication there must be such a dissemination of the work of art itself among the public, as to justify the belief that it took place with the intention of rendering such work common property." American Tobacco Co. v. Werckmeister, 207 U. S. 284, 299, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [quot Slater Copyrights & Trade-Marks p 92].

[b] Rule applied.-"We think this doctrine is sound and the result of the best considered cases. In this case it appears that paintings are expressly entered at the gallery with copyrights reserved. There is no permission to copy; on the other hand, officers are present who rigidly enforce the the requirements of society that no copying shall take place.' American Tobacco Co. V. Werckmeister, 207 U. S. 284. 28 SCt 72. 52 L. ed. 208, 12 AnnCas 595.

53. Wagner v. Conried, 125 Fed. 798; Holmes v. Hurst, 80 Fed. 514. 25 CCA 610 [aff 76 Fed. 757, and aff 174 U. S. 82. 19 SCt 606, 43 L. ed. 904]. See also supra § 42.

[a] Effect of intent.-"Of course, there are cases where knowledge of

not amount to a publication, for the obvious reason that a book may be withheld from the public after it has been printed.57 To constitute a publication there must, in addition to printing, be some distribution of the copies.58 A book is of course published generally when printed copies are sold or distributed unconditionally to the public.59 The delivery of a printed copy of a work to one of several subscribers for even a limited edition of the work is sufficient to constitute a general publication. But there may be such a qualified distribution of the printed copies, as in the case of their being delivered to a few ascertained persons only who receive them under conditions expressly or impliedly precluding any ulterior diffusion of the knowledge of their contents, as will not constitute such publication as amounts to a dedication of the work to

60

authority for any purposes of profit or publication to which the receiver may choose to devote them." Werckmeister v. American Lith. Co., 134 Fed. 321, 325, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244, and quot Story Eq. § 943].

[b] Use for instruction.-It is not an abandonment to use one's manuscript to instruct others who are permitted to take copies. Bartlette v. Crittenden, 2 F. Cas. No. 1,076, 5 McLean 32, 2 F. Cas. No. 1,082, 4 McLean 300.

a person's intent is materially help-| be construed as a general gift or
ful towards the determination of
what his actions really were. The
statute or picture exhibited to
friends in the artist's studio, the MS.
submitted to critics for suggestions
as to alteration, the books distrib-
uted for purposes of future sale,
are cases in point. But where an
author causes what he has written
to be printed, and then allows it
to be put publicly on sale, offering
copies to whomever chooses to buy,
and actually selling such copies by
the thousand, it is idle to say that
there had been no publication of
what is thus printed and given to
the world, because the author in-
tended thereafter to combine what
he has thus sold with other writings
of his own, and then to apply for
copyright on the combination."
Holmes v. Hurst, 80 Fed. 514, 515.
25 CCA 610 [aff 76 Fed. 757, and aff
174 U. S. 82, 19 SCt 606, 43 L. ed.
904].

54. Wagner v. Conried, 125 Fed. 798.

[a] Rule applied.-"Upon the titlepage of each copy of this duodecimo edition thus sold appears the following notice: This copy must not be used for production on the stage;' but it is the well settled law of this country that if the publication is complete such notice is ineffective to reserve the very right which such publication dedicates to the public." Wagner v. Conried, 125 Fed. 798,

801.

56. Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722. 52 L. ed. 1086]; French v. Maguire, 55 How Pr (N. Y.) 471.

[a] Submission to publisher.-Submitting a literary composition for the purposes of acceptance or rejection by a publisher is not a general publication and does not prejudice the owner's common-law rights. Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086, and quot 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)].

57. Werckmeister V. American Lith. Co., 134 Fed. 321, 325, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244]; Jewelers' Mercantile Agency V. Jewelers' Weekly Pub. Co., 84 Hun 12, 32 NYS 41 [rev on other grounds 155 N. Y. 241, 49 NE 872, 63 AmSR 666, 41 LRA 846]; Prince Albert v. Strange, 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint 1171.

55. Werckmeister V. American Lith. Co., 134 Fed. 321. 69 CCA 553, 68 LRA 591 [rev 126 Fed. 2441: Boucicault v. Fox, 3 F. Cas. No. 1.691, 5 Blatchf. 87; Crowe v. Aiken, "In case of a book, ordinarily the 6 F. Cas. No. 3,441, 2 Biss. 208; Froh- sole practical benefit to the author man v. Ferris. 238 Ill. 430, 436. 87 NE is in the right to multiply copies. 327. 128 AmSR 135, 43 LRANS 639 The exhibition or private circulation [aff 223 U. S. 424, 32 SCt 263, 56 of the original or of printed copies L. ed. 492]; Thompson v. Stanhope, is not a publication, unless it . Ambl. 737. 27 Reprint 476; Prince amounts to a general offer to the Albert v. Strange, 2 De G. & Sm. 652, public. The unrestricted offer of 64 Reprint 293, 1 Hall & T. 1, 47 even a single copy to the public imReprint 1302, 1 Macn. & G. 25, 47 plies the surrender of the common EngCh 19. 41 Reprint 1171; Queens-law right." Werckmeister v. Amerberry v. Shebbeare, 2 Eden 329, 28 ican Lith. Co., supra. Reprint 924; Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681.

"The author may permit the use of his productions by one or more persons to the exclusion of all others and may give a copy of his manuscript to another person without parting with his property in it." Frohman v. Ferris, supra.

[a] Rule applied.-"In case of literary, scientific, and professional treatises in manuscript, it is obvious that the author must be deemed to possess the original ownership and be entitled to appropriate them to such uses as he shall please. Nor can he be justly deemed to intend to part with that ownership by depositing them in the possession of a third person, or by allowing a third person to take and hold a copy of them. Such acts must be deemed strictly limited, in point of right. use, and effect, to the very occasions expressed or implied, and ought not to

58. See supra §§ 46, 47.
59.

Osgood v. A. S. Aloe Instrument Co., 83 Fed. 470; Holmes V. Hurst, 80 Fed. 514, 25 CCA 610 [aff 76 Fed. 757, and aff 174 U. S. 82, 19 SCt 606, 43 L. ed: 904]; Gottsberger v. Aldine Book Pub. Co., 33 Fed. 381; Baker v. Taylor, 2 F. Cas. No. 782, 2 Blatchf. 82; 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]; Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480; Potter v. McPherson, 21 Hun (N. Y.) 559; Vernon Abstract Co. v. Waggoner Title Co.. 49 Tex. Civ. A. 144, 107 SW 919; Boucicault v. Chatterton, 5 Ch. D. 267 (printed and issued to the public); Blanchett v. Ingram, 3 T. L. R. 687 (gratuitous distribution).

60. Keene V. Clarke, 28 N. Y. Super. 38. See also supra § 46 text and note 48.