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Right to sue. The general owner of the commonlaw property may sue for infringement notwithstanding he has granted a license to a third person. A licensee with an exclusive license to perform a dramatic or musical work for a limited time in specified territory may sue in equity to protect his exclusive right against infringement,97 especially if by the terms of his license he is to bring all suits for the protection of his rights.98

3

[ 63] 4. Jurisdiction of State and Federal Courts.99 The copyright laws have not taken away or affected the jurisdiction of the state courts over the common-law right of an author in his unpublished works.1 The state courts have exclusive jurisdiction of actions or suits concerning common-law intellectual property,2 and of contracts relating thereto, except where the requisite diversity of citizenship exists to give a concurrent jurisdiction to the federal courts, and perhaps except in the case of manuscripts. The former copyright statute provided that every person who shall print or publish any manuscript whatever without the consent of the author or proprietor first obtained shall be liable to the author or proprietor for all damages occasioned by such injury. Of course, the federal courts have jurisdiction of actions based on this statute. But this provision was omitted from the

revision of 1909, which is the act now in force. The latter act simply provides that it shall not be construed to annul or limit the right of the author or proprietor of an unpublished work, at commonlaw or in equity, to prevent the copying, publication, or use of such unpublished work without his consent and to obtain damages therefor. As this act repeals prior laws only so far as inconsistent therewith, it may be that this provision of the former statute is not repealed. In any event, this statutory remedy has been held to be cumulative to that given by the common law, and the jurisdiction of state and federal courts in such cases is concurrent.1 10 A picture is not a manuscript within the meaning of the statute.11 Where defendant justifies infringement of common-law rights under an alleged copyright in him, a federal right is claimed which will support an appeal to the supreme court of the United States from the highest state court.12 [64] 5. Burden of Proof.13 In an action to enforce the common-law right in an intellectual production, the burden of proving that there has been a dedication to the public by publication is on defendant.14 The consent of the author to the publication which is claimed to work a forfeiture of the common-law property must be affirmatively proved by the party who relies on the publication.15

copyright

laws see

No. 10,784, 3 Cliff. 537; Pualte v.
Derby, 20 F. Cas. No. 11,465, 5 Mc-
Lean 328; Outcault v. Lamar, 135
App. Div. 110, 119 NYS 930.

pendent on diverse citizenship see
Jurisdiction of federal court as de-
Courts [11 Cyc 863].

tual printing and publishing); Stiff | bring suit for infringement in this 7.644; Parton v. Prang, 18 F. Cas. v. Cassel, 2 Jur. N. S. 348; Morris country and v. Colman, 18 Ves. Jr. 437, 34 Re- Fleckenstein, supra. print 382; Clarke v. Price, 2 Wils. Canada." Aronson V. Ch. 157, 37 Reprint 270 [expl Lumley infra 89 381, 382. 99. Under v. Wagner, 1 De G. M. & G. 604, 622, 50 EngCh 466, 42 Reprint 687, 6 ERC Jewelers' Weekly Pub. Co., 155 N. Y. 1. Jewelers' Mercantile Agency v. 652]. LRA 846 [rev 84 Hun 12, 32 NYS 241, 49 NE 872, 63 AmSR 666, 41 41]; Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480: O'Neill v. General Film Co., 171 App. Div. 854, 157 NYS Carl Laemmle Music Co., 74 Misc. 1028 [mod 152 NYS 599]; Stern v. 262, 133 NYS 1082 [aff 155 App. Div. 895 mem, 139 NYS 1146 mem]; Isaacs v. Daly, 39 N. Y. Super. 511; WoolHow Pr 49. sey v. Judd, 11 N. Y. Super. 379, 11

[a] Rule applied. Where plaintiffs had purchased the copyright of and the right to use the name of defendant in the publication of a work called "Beeton's Christmas Annual," and defendant agreed to give his whole time to plaintiffs, and not to engage in any the service of other business, defendant will restrained from advertising a rival be work. Ward v. Beeton, L. R. 19 Eq. 207.

Injunctions to enforce negative covenants generally see Injunctions [22 Cyc 845].

96. Fleron v. Lackaye, 14 NYS 292. [a] Reason for rule. "The cense given to Brady does not disable lithe plaintiff from maintaining the action. He is the dramatization, and interested in its owner of the preservation from piracy. An injury to it reaches his proprietary right, notwithstanding the temporary license given Brady to perform the play for a limited period. might, perhaps, have enjoined the Brady defendant's conduct, on the ground of injury to his special property, but this is no answer to the plaintiff's action. Any person injured by the wrongful act of another has a remedy for the wrong, and the fact that more than one has been injured is no defense. Each may redress his special injury without with the other." Fleron v. Lackaye, interfering 14 NYS 292, 293.

97. Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177; Frohman v. Fitch. 164 App. Div. 231, 149 NYS 633; Fleron V. Lackaye, 14 NYS 292.

98. Aronson v. Fleckenstein, 28 Fed. 75, 78.

"It is also urged that complainant is only a licensee, and therefore cannot sue in his own name. however, the exclusive licensee for He is, two years, with an option for extension, and, by the terms of his license, is to bring all suits for the protection of his rights, necessary and hence is, I think, the only one to

an

2.

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; 1,692, 13 Blatchf. 47; Palmer v. De Boucicault v. Hart, 3 F. Cas. No. Witt, 47 N. Y. 532, 7 AmR 480; Outcault v. Lamar, 135 App. Div. 110, 119 NYS 930; Jewelers' Mercantile grounds 155 N. Y. 241, 49 NE 872, 63 Agency v. Jewelers' Weekly Pub. Co., 84 Hun 12, 32 NYS 41 [rev on other AmSR 666, 41 LRA 846]; Isaacs v. Daly, 39 N. Y. Super. 511; Woolsey v. Judd, 11 N. Y. Super. 379, 11 How Pr 49.

Press Pub. Co. v. Monroe, 73

3. Widmer v. Greene, 56 HowPr
(N. Y.) 91. See also infra § 382.

[a] Action under agreement for
right to perform a play.-A state
court has jurisdiction of an action
to determine the rights of the re-
spective parties under an agreement
exclusive right to have and to per-
by defendant with plaintiff for the
form a
Greene, 56 How Pr (N. Y.) 91.
certain play. Widmer

V.

by Act March 3. 1891 (26 U. S. St. at
5. U. S. Rev. St. § 4967, amended
L. 1109 c 565 § 9). But see Palmer v.
whether this act applied to manu-
De Witt, 47 N. Y. 532. 7 AmR 480
(where the court expressed a doubt
scripts not the subject of copyright
under the statute).

6. See cases infra note 10.
also Courts [11 Cye 857].
7.

See

Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 2). 8.

Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 63).

9.

Repeal of statutes generally see Statutes [36 Cyc 1068]. 10. Bartlett v. Cas. No. 1,076, 5 McLean 32; BouciCrittenden, 2 F. Blatchf. 47; Palmer v. De Witt, 47 cault v. Hart, 3 F. Cas. No. 1.692, 13 N. Y. 532, 7 AmR 480; Stern v. Carl Laemmle Music Co., 74 Misc. 262, 133 NYS 1082 [aff 155 App. Div. 895 mem, 139 NYS 1146 mem]; Woolsey Pr 49; Widmer v. Greene, 56 HowPr v. Judd, 11 N. Y. Super. 379, 11 How (N. Y.) 91; Isaacs v. Daly, 6 LegGaz (N. Y.) 175.

[a] But there is no such concurtion of the manuscript is merely inrent jurisdiction when the proteccidental to the main question in the case. Haworth v. Nystrom, 11 F. Cas. No. 6,251.

No. 10.784, 3 Cliff. 537.
11. Parton v. Prang, 18 F. Cas.

12. Ferris v. Frohman, 223 U. S.
424, 32 SCt 263, 56 L. ed. 492.
also infra § 438.
See

4. Press Pub. Co. v. Monroe, 164
U. S. 105, 17 SCt 40. 41 L. ed. 367
51 LRA 353]; Little v. Hall, 18 How.
[dism app 73 Fed. 196, 19 CCA 429,
v. Foote, 101 Fed. 264; Larrowe-Loi-mem. 43 A 1098 mem].
(U. S.) 165, 15 L. ed. 328; Maloney
sette v. O'Loughlin, 88 Fed. 896;
1.076, 5 McLean 32; Boucicault v.
Bartlett v. Crittenden, 2 F. Cas. No.
Hart, 3 F. Cas. No. 1,692, 13 Blatchf.
47: Folsom v. Marsh, 9 F. Cas. No.
13 F. Cas. No. 7.437, 1 Blatchf. 618;
4,901, 2 Story 100; Jollie v. Jaques,
Keene v. Wheatley, 14 F. Cas. No.

13. In copyright cases see infra § 412 et seq.

14. New Jersey State Dental Soc. 596, 41 A 672 [aff 58 N. J. Eq. 582 v. Dentacura Co., 57 N. J. Eq. 593,

fendant.
"The burden of proof is on the de-
It must show affirmatively
ant's has now become common prop-
that what was
erty." New Jersey State Dental Soc.
once the complain-
v. Dentacura Co., supra.

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

III. ORIGIN AND NATURE OF COPYRIGHT

[65] A. A. Historical Summary. The law of copyright is of a comparatively recent development.16 Undoubtedly it was the invention of the art of printing, by which the multiplication of copies was made easy and profitable, that first gave rise to the need for copyright legislation.17 The earliest form of copyright protection grew out of printers' licenses granted under the King's prerogative and enforced through Star Chamber decrees.18 Then followed the licensing acts which prohibited printing unless the book was first licensed and entered in the register of the Stationers' Company.19 The purpose of such licenses was censorship of the press and the suppression of licentious

20

libels, not the protection of authors or publishers, but obviously the licensee or grantee of the monopoly of printing a book obtained thereby incidental protection in the publication of copies, which became a valuable right.21 When the licensing statute finally expired in 1694 this form of protection was lost and then began the agitation for new legislation which led to the adoption of the statute of Anne.

[66] B. Right Purely Statutory. Copyright, in the strict sense of the term,2 22 is purely a statutory right.23 It is a new or independent right granted by the statute, and not simply a preexisting right regulated by the statute.24 Being

16. Constitutional and statutory | ing-press. No book whatsoever was provisions see infra §§ 69-89.

17. Bobbs-Merrill Co. V. Straus, 147 Fed. 15, 19, 77 CCA 607, 15 LRA NS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]. "The common-law right of first publication and its incident of restricted publication were sufficient for the protection of authors prior to the invention of printing. Thereafter, when the substantial profit to be derived from literary property consisted in the multiplication of copies by printing, the statutory protection was substituted for the common-law protection, upon the condition precedent of the surrender of the common-law right. That this is the sole right conferred by statute, as distinguished from such common-law rights as inhere in the ownership of other property, is evident from the language of the statutes, and from the decisions." BobbsMerrill Co. v. Straus, supra.

18. See infra note 21. "The right of an author, irréspective of statute, to his own productions and to a control of their publications, seems to have been recognized by the common law, but to have been so ill defined that from an early period legislation was adopted to regulate and limit such right. The earliest recognition of this common law right is to be found in the charter of the Stationers' Company, and certain decrees of the Star Chamber promulgated in 1556, 1585, 1623 and 1637, providing for licensing and regulating the manner of printing, and the number of presses throughout the Kingdom, and prohibiting the publication of unlicensed books. Indeed, the Star Chamber seems to have exercised the power of search, confiscation and imprisonment without interruption from Parliament, up to its abolition in 1641. From this time the law seems to have been in an unsettled state-although Parliament made some efforts to restrain the licentiousness of the press-until the eighth year of Queen Anne, when the first copyright act was passed, giving authors a monopoly in the publication of their works for a period of from fourteen to twentyeight years." Holmes v. Hurst, 174 U. S. 82, 84, 19 SCt 606, 43 L. ed. 904.

[a] "The earliest instance of a protected copyright for printed books was granted by the senate of Venice in 1469; and as early as 1486, a censorship of the press, or restraint on the sale of printed books, was introduced in Germany." 2 Kent Comm. (14th ed) p 373 note (b).

19. See infra note 21.
20.

See infra note 21.

21. [a] A concise history of this subject during the period prior to the statute of Anne is given in Mr. Macgillivray's accurate treatise as follows: "The first record which we have of any monopoly in the reproduction of literary work is in the exercise of the alleged prerogative of the Crown to control the print

1086 [aff 147 Fed. 15, 77 CCA 607, 15 LRANS 766 (aff 139 Fed. 155)]; White-Smith Music Pub. Co. V. Apollo Co., 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628 [aff_147 Fed. 226, 77 CCA 368 (aff 139 Fed. 427)]; American Tobacco Co. V. Werckmeister, 207 U. S. 284. 28 SCt 72. 52 L. ed. 208, 12 AnnCas 595; Mifflin v. Dutton, 190 U. S. 265, 23 SCt 771, 47 L. ed. 1043 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134]; Mifflin v. R. H. White Co., 190 U. S. 260, 23 SCt 769, 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134 (aff 107 Fed. 708)]; Holmes v. Hurst, 174 U. S. 82, 19 SCt 606. 43 L. ed. 904; Thompson v. Hubbard, 131 U. S. 123, 9 SCt 710, 33 L. ed. 76; Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]; Stevens v. Gladding, 17 How. (U. S.) 447, 15 L. ed. 155; Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055; Grant v. Raymond, 6 Pet. (U. S.) 218, 8 L. ed. 376; Bentley v. Tibbals, 223 Fed. 247, 138 CCA 489; Dixon V. Corinne Runkel Stock Co., 214 Fed. 418; New York Times Co. v. Star Co., 195 Fed. 110; DeJonge v. Breuker, etc., Co., 191 Fed. 35, 111 CCA 567 [aff 182 Fed. 150, and aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113]; White-Smith Music Pub. Co. v. Goff, 187 Fed. 247, 109 CCA 187; Record, etc., Co. v. Bromley, 175 Fed. 156: Saake V. Lederer, 174 Fed. 135, 98 CCA 571 [rev 166 Fed. 810]; Freeman V. Trade Register, 173 Fed. 419; Carter v. Bailey, 64 Me. 458, 18 AmR 273; State v. State Journal Co., 77 Nebr. 752, 110 NW 763, 9 LRANS 174; Tuck v. Priester, 19 Q. B. D. 629; MacMillan v. Khán Bahadur Shamsul Ulama M. Zaka, [1895] 19 Indian L. R. (Bombay) 557; Donaldson v. Beckett, 2 Bro. P. C. 129, 1 Reprint 837 [cit Millar v. Taylor, 4 Burr. 2303, 2408, 98 Reprint 201];

allowed to be printed without a license or grant of monopoly from the Crown. One of the principal objects in the exercise of this prerogative was the prevention of the dissemination of religious doctrines contrary to the accepted faith. Henry VIII. created the Company of Stationers to supervise and control the publication of books. This company made various rules and regulations as to the printing of books, and from them licenses could be obtained by an author to print his copy. The Stationers' Company was first incorporated in the reign of Philip and Mary in 1556. The Crown enforced its prerogative and the rules of the Stationers' Company by means of the Court of Star Chamber, which from time to time passed various decrees, and punished offenders by fine and imprisonment. By this means the Crown until 1640 exercised an unlimited jurisdiction over the press. In this there was no recognition of a right of property in the author of a work, but merely an enforcement of the royal prerogative to control the press. Incidentally, however, a kind of property sprang up, since the Stationers' Company in granting licenses recognised the right of the author or his assignee to his copy. Licenses were granted to those who showed that they had a right in the manuscript, and all others were prohibited from infringing the monopoly. An entry in the records of the Stationers' Company in 1562, for instance, enacts "That if it be found any other has a right to any of the copies, then the license touching such of the copies so belonging to another shall be void.' When the Star Chamber was abolished in 1640 the two Houses made an ordinance prohibiting printing unless the book was first licensed and entered in the register of the Stationers' Company, and further prohibiting printing without the consent of the owner. At the Restoration a licensing statute [13 and 14 Car 2 c 33] was passed similarly prohibiting printing without license and without the consent of the owner. The statute finally expired in 1694. On the expiration of the licensing statute, authors and pub-copyright is the creation of the lishers thought that all protection for literary work was gone, and made strenuous efforts for new legislation. Bills were brought into Parliament in 1703 and 1706, and finally in 1709 the copyright statute of Anne became law." Macgillivray Copyright pp 3. 4. For other historical summaries see Copinger Copyright (5th ed) p 5 et seq; Curtis Copyright p 26 et seq; Drone Copyright p 54 et seq; Birrell Copyright p 41 et seq; Bowker Copyright p 8 et seq.

22. See supra § 1.

23. Caliga v. Inter Ocean Newspaper Co., 215 U. S. 182, 30 SCt 38, 54 L. ed. 150; Globe Newspaper Co. v. Walker, 210 U. S. 356, 28 SCt 726. 52 L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRANS 913 (rev 130 Fed. 593)]; Bobbs-Merrill Co. v. Straus. 210 U. S. 339, 28 SCt 722, 52 L. ed.

[a] It is the settled law (1) of the United States as well as of England that the right of an author to a monopoly in the publication of his productions is governed by the copyright statutes which superseded the common law in that regard. Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904. (2) "In this country it is well settled that property in Federal statute passed in the exercise of the power vested in Congress by the Federal Constitution in Art. I, § 8, 'to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.'" American Tobacco Co. V. Werckmeister, 207 U. S. 284. 291, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595.

24. Caliga v. Inter Ocean Newspaper Co., 215 U. S. 182, 188, 30 SCt 38, 54 L. ed. 150; Globe Newspaper Co. v. Walker, 210 U. S. 356, 28 SCt 726. 52 L. ed. 1096; Wheaton V. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055; Dixon v. Corinne Runkel Stock Co., 214 Fed. 418; White-Smith Music Pub. Co. v. Apollo Co., 147 Fed. 226, 77 CCA 368 [aff 139 Fed. 427, and aff 209 U. S. 1, 28 SCt 319, 52 L. ed.

25

COPYRIGHT AND LITERARY PROPERTY

a statutory grant, the right is only such as the
statute confers,2
joyed only in respect to the subjects,26 and by the
and may be obtained and en-
persons, and on the terms and conditions specified
in the statute.28

27

[67] C. Incorporeal Nature. Copyright is an intangible, incorporeal right,29 in the nature of a privilege or franchise,30 and wholly disconnected

[§§ 66-67 from and independent of, any material substance, such as the manuscript or the plate used for printing. 31 A sale or other transfer of such physical embodiment of the subject copyrighted does not carry with it the right to make copies.3 sale of an original copyrighted picture does not 32 Thus the authorize the purchaser to publish copies. So the sale of a plate on which a copyrighted picture

ter, 207 U. S. 284, 298, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595.

655, 14 AnnCas 628]; Bobbs-Merrill | existing at common law; but, as it | American Tobacco Co. v. Werckmeis-
Co. v. Straus, 147 Fed. 15, 77 CCA exists in the United States, it de-
607, 15 LRANS 786 [aff 139 Fed. 155, pends wholly on the legislation of
and aff 210 U. S. 339, 28 SCt 722, 52 Congress."
L. ed. 1086]; Hartman v. John D.
Park, etc., Co., 145 Fed. 358 [rev
on other grounds 153 Fed. 24, 82 CCA infra §§ 264-271.
Banks
supra.
v. Manchester,
158, 12 LRANS 135 (certiorari dism
Rights conferred by copyright see
212 U. S. 588, 29 SCt 689, 53 L. ed.
662)]; Walker v. Globe Newspaper
Co., 140 Fed. 305, 72 CCA 77, 2
LRANS 913, 5 AnnCas 274 [rev 130
Fed. 593, and rev on other grounds
210 U. S. 356, 28 SCt 726, 52 L. ed.
1096]; Carter v. Bailey, 64 Me. 458,
18 AmR 273.

[graphic]

25. White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628; Banks v. Manchester, 128 U. S. 244, 251, 9

SCt 36, 32 L. ed. 425 [aff 23 Fed. 1431; Caliga v. Inter-Ocean Newspaper Co., 157 Fed. 186, 84 CCA 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 150]; Stern v. Rosey, 17 App. (D. C.) 562.

"Although the Constitution of the United States, in § 8 of Article 1, provides that the Congress shall have power 'to promote the progress of science and useful acts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries, yet the means for securing such right to authors are to be prescribed by Congress. scribed such It has premethod is to be followed. a method, and that thority exists for obtaining a copyNo auright, beyond the extent to which Congress has authorized it. A copyright cannot be sustained as a right

32. Stephens v. Cady, 14 How. (U. S.) 528, 14 L. ed. 528; 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]; Werckmeister v. American Lith. Co., 134 Fed. 321, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244]; Pat458, 18 AmR 273. terson v. J. S. Ogilvie Pub. Co., 119 Fed. 451; Carter v. Bailey, 64 Me.

mechanical instruments, or means by [a] Reason for rule.-"The enwhich the copies are multiplied, as graved plate and the press are the the types and press are the instruright to print and publish the copies ments by which the copies of a book would be saying, in effect, that the are produced. And to say that the exclusive right to make any given means by which they are produced, adheres to and passes with the work of art necessarily belonged to the person who happened to become the owner of the tools with which it was made; and that if the defendant in this case had purchased the stereotyped plates of a book, instead of the engraved plate, he would have been entitled to the copy-right of print, publish, and vend it; and yet, the work, or at least, to the right to we suppose that the statement of any such pretension is so extravagant as to require no argument to refute it. Even the transfer of the manuscript of a book will not, at common law, carry with it a right to print and publish the work, without the express consent of the author, as the property in the manuscript, and the right to multiply the copies, are two separate and distinct interests. Pope v. Curl, 2 Atk. 342, 26 Reprint 608; Millar v. Taylor, 4 Burr. 2303, 98 Reprint 201; Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924; 2 Story 100." Stephens v. Cady, 14 How. (U. S.) 528, 530, 14 L. ed.

, same title, page and note number

is etched or engraved does not authorize the purchaser to use it to reproduce copies of such picture without the consent of the copyright proprietor.34 But the sale of a plate or block for printing a design may operate as a license to use it for that

39

[blocks in formation]

[68] D. Personal Property. Copyright is personal property and is protected as such.3

IV. STATUTORY AND CONSTITUTIONAL PROVISIONS

[69] A. General Statement-1. England. In the year 1709 the first copyright act, commonly called the Statute of Anne, was passed.38 This act provided that authors of books should have the exclusive right of printing them for the period of fourteen years, with a second term in the author for an additional fourteen years, if the author was living at the expiration of the first term; a penalty and forfeiture was imposed for infringement. Registration at Stationers' Hall before publication was made a condition precedent to any action for infringement.3 This act put an end to common-law rights in published books, but left common-law rights in unpublished books unaffected.40 In 1801 the Statute of Anne was amended in some respects, and in addition to the forfeitures and penalties for infringement, the copyright proprietor was given an action for damages against the infringer."1 In 1814 the statute was further amended, and the copyright term was lengthened to twenty-eight years from the day of first publication, and, if the author was living at the expiration of that term, for the remainder of his life.42 These statutes were repealed in 1842 by the Copyright Act of that year.

(where the copyright was first sold to one person, and the picture then offered for sale with the copyright reserved).

34. American Tobacco Co. V. Werckmeister, 207 U. S. 284. 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; Stevens v. Gladding, 17 How. (U. S.) 447. 452, 15 L. ed. 155; Stephens v. Cady, 14 How. (U. S.) 528, 14 L. ed. 528; Carter v. Bailey, 64 Me. 458, 18 AmR 273; Cooper v. Stephens, [1895] 1 Ch. 567; Marshall v. Bull, 85 L. T. Rep. 77.

There are no special facts in this case to distinguish it from any case of a sale on execution of copper or stereotype plates. It appears that the plaintiff owned the plate; whether he made it, or caused it to be made, or purchased it after it had been made, does not appear. Nor should the case be confounded with one where the owner of copper or stereotype plates sells them. What rights would pass by such a sale would depend on the intentions of its parties, to be gathered from their contract and its attendant circumstances. In this case, the owner of the copyright made no contract of sale, and necessarily had no intention respecting its subject-matter. The sole question is, whether the mere fact that the plaintiff owned the plate, attached to it the right to print and publish the map, so that this right passed with the plate by a sale on execution." Stevens V. Gladding, supra.

35. Cooper v. Stephens, [1895] 1 Ch. 567 [appr Marshall v. A. H. Bull, Ltd., 85 L. T. Rep. N. S. 77]; Dennison v. Ashdown, 13 T. L. R. 226.

36. Stevens v. Gladding, 17 How. (U. S.) 447, 451, 15 L. ed. 155.

"These incorporeal rights do not exist in any particular state or district; they are coextensive with the United States. There is nothing in any act of congress, or in the nature of the rights themselves, to give them locality anywhere, SO as to subject them to the process of courts having jurisdiction limited by the lines of states and districts.' Stevens v. Gladding, supra. 37. Weatherby

V.

International

43

37

This act extended the term of protection to a period of forty-two years, or for the author's life and seven years thereafter, whichever should prove the longer. It also changed the requirement of registration at Stationers' Hall from a condition precedent to copyright protection to a mere condition precedent to action, which could be complied with after infringement. The act of 1842 remained in force until in turn repealed by the Copyright Act of 1911.** In the meanwhile special copyright acts had been enacted for the protection of intellectual and artistic property in other than literary works, such as the engraving copyright acts, the Prints Copyright Act, the Sculpture Copyright Act, the Dramatic Copyright Act, the Lectures Copyright Act,19 the Fine Arts Copyright Act,50 and the musical copyright acts.51 Provision was also made for international52 and colonial copyright. The act of 1911, "to amend and consolidate the law relating to copyright," went into effect July 1, 1912, and repeals all prior copyright statutes, except the musical copyright acts of 1902 and 1906, and one section of the Fine Arts Copyright Act of 1862.54 Practically the entire law of

53

Horse Agency, etc., Ltd., [1910] 2 Ch.
297; 8 Halsbury L. Eng. p 140.
38. St. 8 Anne c 19.
39.

Registration at Stationers'
Hall see infra §§ 225-231.
See supra § 41.

40.

41.

42.

St. 41 Geo. III c 107.
St. 54 Geo. III c 156.

43.

St. 5 & 6 Vict. c 45.

44.

St. 1 & 2 Geo. V c 46.

45. Prints & Engravings Copyright Act, 1836 (6 & 7 Wm. IV c 59); Engraving Copyright Act, 1767 (7 Geo. III c 38); Engraving Copyright Act, 1734 (8 Geo. II c 13).

46. Prints & Engravings Copyright Act, 1836 (6 & 7 Wm. IV c 59); Prints Copyright Act, 1777 (17 Geo. III c 57).

47. Sculpture Copyright Act, 1814
(54 Geo. III c 56).

48. Dramatic Copyright Act, 1833
(3 & 4 Wm. IV c 15).
49.

Lectures Copyright Act, 1835
(5 & 6 Wm. IV c 65).

50. Fine Arts Copyright Act, 1862 (25 & 26 Vict. c 68).

51. Musical Copyright Act, 1906 (16 Edw. VII c 36); Copyright (Musical Compositions) Act, 1888 (51 & 52 Vict. c 17); Copyright (Musical Compositions) Act, 1882 (45 & 46 Vict. c 40).

52. International Copyright Act, 1886 (49 & 50 Vict. c 33); International Copyright Act, 1875 (38 & 39 Vict. c 12); International Copyright Act, 1852 (15 & 16 Vict. c 12); International Copyright Act, 1844 (7 & 8 Vict. c 12). See also infra § 453 et seq.

53. Colonial Copyright Act, 1847 (10 & 11 Vict. c 95). See also infra § 77 et seq.

54. See Schedule of Enactments Repealed, Copyright Act, 1911 (1 & 2 Geo. V c 46 § 36).

[a] The following enactments have been wholly or partially repealed, but the repeal does not take effect in any part of the king's dominions until the Copyright Act, 1911 (1 & 2 Geo. V c 46) comes into force in that part (1 & 2 Geo. V § 36). The repeal is of the whole act in each case, except where the sections repealed are specified:

Engraving Copyright Act, 1734 (8

Geo. II c 13).

46

48

Engraving Copyright Act, 1767 (7
Geo. III c 38).

Copyright Act, 1775 (15 Geo. III c
53).

Prints Copyright Act, 1777 (17 Geo.
III c 57).

Sculpture Copyright Act, 1814 (54
Geo. III c 56).

Dramatic Copyright Act, 1833 (3 & 4
Wm. IV c 15).

Lectures Copyright Act, 1835 (5 & 6
Wm. IV c 65).

Prints and Engravings Copyright
(Ireland) Act, 1836 (6 & 7 Wm. IV
c 59).

Copyright Act, 1836 (6 & 7 Wm. IV c 110).

Copyright Act, 1842 (5 & 6 Vict.. c 45).

International Copyright Act, 1844 (7
& 8 Vict. c 12).

Colonial Copyright Act, 1847 (10 &
11 Vict. c 95).
International Copyright Act, 1852 (15
& 16 Vict. c 12).

Fine Arts Copyright Act, 1862 (25 &
26 Vict. c 68) (§§ 1-6, 9-12; in § 8
the words, "and pursuant to any
Act for the protection of copyright
engravings," and "and in any such
Act as aforesaid").
International Copyright Act, 1875 (38
& 39 Vict. c 12).

Customs Consolidation Act, 1876 (39
& 40 Vict. c 36) (§§ 44, 45, 152, and
42 from "Books wherein" to "such
copyright will expire").
Copyright (Musical Compositions)
Act, 1882 (45 & 46 Vict. c 40).
International Copyright Act, 1886 (49
& 50 Vict. c 33).
Copyright (Musical Compositions)
Act, 1888 (51 & 52 Vict. c 17).
Revenue Act, 1889 (52 & 53 Vict. c
42) (§ 1, from "Books first pub-
lished" to "as provided in that sec-
tion").

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Musical Copyright Act, 1906 (6 Edw. VII c 36) (in § 3, the words "and which has been re-registered in accordance with the provisions of the Copyright Act, 1842, or of the International Copyright Act, 1844, which registration may be effected notwithstanding anything in the International Copyright Act, 1886").

copyright in Great Britain, both in published and unpublished works, depends on the act of 1911, but as the language of the repealed statutes has not been preserved to any considerable extent, it is difficult to determine how far cases decided under the former acts are applicable to the new statute.

57

In

56

[70] 2. United States-a. State Statutes. 1783 the colonial congress recommended to the several states the enactment of laws to secure to authors and publishers of books "the copy right of such books" for a specified time.55 All of the original thirteen states except Delaware enacted copyright laws prior to the year 1786. These state laws were the first American copyright statutes,5 although Massachusetts Bay Colony in 1672 enacted an "order" providing that no printer or any other person should print more copies than were agreed and paid for by the owner, without the owner's consent." These state copyright statutes were long since repealed or became superseded by the federal legislation on the same subject. In quite a number of states statutes have been enacted in more or less similar terms for the protection of dramatic, musical, or operatic works against unauthorized performance or publication, which is made a misdemeanor punishable by fine and imprisonment.58 most instances these statutes are expressly confined to "unpublished or undedicated" works,59 or "uncopyrighted" works, but in some instances the statutes specifically include "copyrighted" works.61 In New Hampshire the statute enumerates and includes substantially all subjects of intellectual property rights which have not been "copyrighted, Subject to the provisions of the Copyright Act, 1911 (1 & 2 Geo. V c 46), §§ 19 (7), (8), 33 there is no copyright in any work made before May 1, 1912, except as provided by the Copyright Act, 1911 (1 & 2 Geo. V c 46), § 24 (1 & 2 Geo. V § 24 (3)).

60

This summary is from Halsbury L. Eng. Suppl. (1917) p 359.

55. Resolution of May 2. 1783 (printed in Copyright Office Bul. No. 3 p 11).

56. See Copyright Office Bul. No. 3 pp 11-31 (where the full text of these early state copyright laws is given).

[a] Under the Connecticut statute twelve days' notice was required to be given to an author of a book who was complained of for not selling a sufficient number, or for asking an unreasonable price for it contrary to the statute. Patten v. Goodwin, 1 Root 172.

57. Copyright Office Bul. No. 3 p 113 (where the full text of this order is printed).

58. See statutory provisions. 59. Cal. L. (1905) c 276; La. L. (1900) Act No. 75; Mass. L. (1904)_c 183; Minn. L. (1905) c 40; Oh. L. (1902) No. 20; Or. L. (1901) Bill No. 144; Pa. L. (1901) No. 209; Wis. L. (1905) c 281.

60. Mich. L. (1905) No. 268. 61. Conn. L. (1905) c 130; N. J. L. (1902) c 249; N. Y. L. (1899) c 475. 62. N. H. L. (1895) c 42. Subject matter of common-law rights see supra §§ 10-24.

63. See supra § 1.

[a] The New York statute is entitled: "An act to amend the penal code of the state of New York, in relation to copyrights." L. (1899) c 475.

[b] The New Hampshire statute is entitled: "An act to protect the owners of literary, dramatic, and musical compositions and works of art in their property." L. (1895)

C 42.

64. See infra §§ 85, 86.

In

printed, or published.'' 62 Of course these statutes constitute copyright legislation, whether so denominated or not, and the constitutionality of some of them may be seriously doubted.64

63

[71] b. Federal Statutes. Under the federal constitution congress is empowered "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 65 The first copyright law enacted by congress pursuant to this provision was that of May 31, 1790,66 which was supplemented and extended by the act of April 29, 1802.07 Subsequent complete revisions were the copyright acts of February 3, 1831,68 of July 8, 1870,69 of December 1, 1873,70 and of March 4, 1909, which went into effect July 1, 1909, and with its amendments is the present law," superseding all former statutes on the subject of copyright.72

Interim copyright. By the act of January 7, 1904, interim copyright protection for two years, with privilege of extending such protection for the full copyright term on performance of conditions, was granted to exhibitors of foreign literary, artistic, or musical works at the Louisiana Purchase Exposition.73

[§ 72] 3. Hawaii. Prior to the annexation of Hawaii to the United States, copyright in those islands was governed by the Hawaiian Copyright Act. 74 After the resolution of annexation of July 7, 1898, the citizens of Hawaii ceased to be citizens or subjects of a foreign state or nation, and therefore were entitled to avail themselves of the privi[a] Statute as to state reporter.— The provision of a state statute that the reporter of the supreme court shall be entitled to the exclusive copyright of each volume published by him after the same is published does not give him any copyright in the volumes. The copyrights can be acquired only by taking the steps required for that purpose by the acts of congress. Black v. Merrill, 51 Ind. 32.

65. Const. art 1 § 8 cl 8.
66. 1 St. at L. 124.
67. 2 St. at L. 171.
68. 4 St. at L. 436.

clauses," which have remained to vex American copyright ever since, and have prevented any true international copyright protection for American books); Act March 3, 1893 (27 St. at L. 743) (curing prior failure to make copyright deposits); Act March 2, 1895 (28 St. at L. 965, 2 Rev. St. Suppl. 437) (penalties for infringement); Act Jan. 6, 1897 (29 St. at L. 481, 2 Rev. St. Suppl. 536) (providing penalties for infringement of dramatic and musical compositions, and making injunctions run throughout United States); Act March 3, 1897 (29 St. at L. 694, 2 Rev. St. Suppl. [a] Amendatory acts.-Act June 613) (providing penarties for false 30, 1834 (4 St. at L. 728) (providing notice of copyright, and prohibiting for recording of assignments); Act importation in violation of copyright Aug. 18, 1856 (11 St. at L. 138) (ex-laws); Act March 3, 1905 (33 St. at L. tending copyright in dramatic compositions to include performing rights); Act March 3, 1865 (13 St. at L. 540) (extending copyright to photographs and negatives thereof, and regulating deposits in library of congress); Act Febr. 18, 1867 (14 St. at L. 395) (providing a penalty for failure to make timely deposit of copyright articles, and other regulations as to deposits).

69. 16 St. at L. 212.

70. Rev. St. §§ 4948-4971.

[a] Amendatory acts.-Act June 18, 1874 (18 St. at L. 78. 79, 1 Rev. St. Suppl. 15, 16) (providing form of notice of copyright, and for registration of prints and labels in patent office); Act Aug. 1, 1882 (22 St. at L. 181, 1 Rev. St. Suppl. 363) (providing where notice of copyright may be placed on certain articles); Act March 3, 1891 (26 St. at L. 1106, 1 Rev. St. Suppl. 951-954) (which act made considerable and important changes in the law. It extended the privileges of copyright to citizens and subjects of foreign countries on condition of reciprocal protection to citizens of the United States in such countries, and is therefore sometimes called the "International Copyright Act." It also introduced for the first time the "domestic manufacture

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1000) (granting interim copyright protection for books first published abroad in foreign language to facilitate compliance with domestic manufacture clauses).

71. 35 St. at L. 1075, as amended by 37 St. at L. 488.

72. Hills v. Hoover, 220 U. S. 329, 31 SCt 402, 55 L. ed. 485, AnnCas 1912C 562.

73. 33 St. at L. 4; Encyclopædia Britannica Co. V. American Newspaper Assoc., 142 Fed. 966, 74 CCA 228 [aff 135 Fed. 841].

[a] Foreign books previously pubshed.The Interim Copyright Act of Jan. 7, 1904 (33 St. at L. 4 c 2), which extended copyright protection for two years to exhibitors, at the Louisiana Purchase Exposition, of foreign books, etc., which had not been copyrighted in the United States, on complying with its provisions, cannot be construed to apply to books of foreign authors which had previously been republished and sold in the United States without copyright, such books not being within the spirit of the act nor the intention of its makers. Encyclopædia Britannica Co. v. American Newspaper Assoc., 142 Fed. 966, 74 CCA 228 [aff 135 Fed. 841].

74. Act June 23, 1888 (Hawaii L.

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