Cases in which

exclusive

author, and which is the ground of the interference of the Court, is in any case equally infringed (idem, and see also Woolsey v. Judd, 4 Duer. (N. Y.) 384; Grigsby v. Breckinridge, 2 Bush. (Ky.) 480).

In some cases letters are by virtue of the relationship letters are existing between the parties the exclusive property of the property receiver, or some person other than the writer, as for of receiver, instance where the solicitor of a company wrote a letter

tion be

ness letters

and those

nature.

to a third person respecting the company's business it was held that the document belonged to the company and not to the solicitor. In this case the solicitor swore that the letter was written and forwarded by him in his private capacity (Howard v. Gunn, 32 Beav. 465), but no intimation to that effect appeared on the face of the letter itself, as for instance by the use of such words as "private," "confidential," or the like (ibid. p. 466). It was stated obiter by the Vice-Chancellor in Percival v. No distinc- Phipps, 2 Ves. & B. 28, that it would be very extraortween busi. dinary to describe ordinary business correspondence as a literary work in which the writer could have copyright ; of literary but it is now certain that the Vice-Chancellor was in error when he drew the distinction between business letters and letters possessed of literary merit (Folsom v. Marsh, 2 Story (Amer.) 110; Gee v. Pritchard, 2 Swans. 426, per Lord Eldon; Woolsey v. Judd, 4 Duer. (N. Y.) 379, overruling Wetmore v. Scovell, 3 Edw. Ch. (N. Y.) 515, and Hoyt v. Mackenzie, 3 Barb. Ch. (N. Y.) 320; Brandreth v. Lance, 8 Paige's R. (Amer.) 24, 26). The receiver of a letter, no matter of what nature, has consequently no right to publish it without the consent of the person who wrote it; he may have a perfect right to destroy it, to read it, or to let any third party read it (unless this should be held to amount to a publication), but he has no right to publish it save and except in one instance only, that is to say as a refutation against false

charges against his character subsequently made by the writer (Percival v. Phipps, 2 Ves. & B. 19, and see the American cases Folsom v. Marsh, 2 Story, 111; Woolsey v. Judd, 4 Duer. (N. Y.) 407; but refer to the decision of Bruce, V.-C., in Palin v. Gatherscole, 1 Coll. 565); and even in this case such right of publication does not extend beyond the purposes of an action at law, and as a necessary part of the evidence (see Folsom v. Marsh, 2 Story, 111, per Mr. Justice Story; also 2 Story's Eq. Juris. par. 948).

Judd.

The whole subject of private letters was very carefully Woolsey v. considered in the American case of Woolsey v. Judd, 4 Duer. 379, and the principles there laid down, founded as they are upon the English decisions, may be considered to be a correct exposition of the law. The case came before the superior court of the city of New York on appeal, and the complaint stated in substance that the defendants by some unlawful means had possessed themselves of a copy or copies of a certain letter, wholly private in its character, which the petitioner had written and forwarded to one William Crowell, and that they had avowed their intention to publish the same in a weekly journal of which they were the editors, proprietors, or publishers. The complaint therefore prayed that they might be restrained from printing, publishing, circulating, or in any other manner, either by writing or otherwise, making public the said letter or any part thereof. The Court below had granted an injunction in these terms and the defendants now moved upon affidavits to dissolve it. It was eventually decided by the Court as follows:

1. That equity will not interfere to restrain the publication of private letters merely because such publication may be, or even will be, injurious to society. (An injunction will be granted whenever it is necessary to prevent the unauthorized use of that which is the exclusive pro

perty of another (Southey v. Sherwood, 2 Mer. 438, per Lord Eldon).

2. The foundation of its jurisdiction is the right of property at Common Law subsisting in the plaintiff after the letter has been delivered at its destination (see Curtis on Copyright, pp. 84, 150, 159).

3. The writer of letters, whether they are literary compositions or familiar letters, or letters of business, possesses the sole and exclusive right of publishing the same, and that without this consent they cannot be published either by the person to whom they are addressed or by any other person (see Pope v. Curl, 2 Atk. 341; Thompson v. Stanhope, Amb. 737; Percival v. Phipps, 2 Ves. & B. 19; Wetmore v. Scovell, 3 Edw. Ch. R. (Amer.) 515; Hoyt v. McKenzie, 3 Barb. Ch. R. (Amer.) 314).

4. That the receiver of letters may, however, justify their publication when it is shown to be necessary to the vindication of his own rights or conduct against unjust claims or imputations (see Gee v. Pritchard, 2 Swanst. 402; Story's Eq. Jurisp. par. 945-8; Folsom v. Marsh, 2 Story R. (Amer.) 100).

5. If the receiver attempt to publish the letters, or any parts of them, against the wishes of the writer, and upon occasions not justifiable, a court of equity is bound to prevent the publication by injunction as a breach of that exclusive property which the writer retains.

6. As against a stranger who has possessed himself of the letters or of copies thereof unlawfully, the right to restrain the publication by an injunction is absolute. Such person not being justified in publishing the letters for any purpose whatever.

The cases of Wetmore v. Scovell, 3 Edw. Ch. R. 515, and of Hoyt v. McKenzie, 3 Barb. Ch. R. 314, in so far as they decided that an injunction to restrain the publication of private letters could only be granted when it

appeared that the letters possessed a certain value as literary compositions were disapproved of.

The right of property in private letters or other communications of a like nature, is therefore, in the majority of cases, vested in the person who inscribes them, and this subsisting right of property is founded solely on the strong probability that had he intended to part with such right, the intention would have been apparent, either by presumption, from the nature of the case, or from direct evidence.

editor of a newspaper.

The proprietor of a periodical is clearly entitled to Letters to publish all letters received from correspondents, unless indeed he be expressly or impliedly forbidden to do so; the inference in this case is, that letters sent to the editor or proprietor are intended for publication (see Hogg v. Kirby, 8 Ves. 215.) There is nothing, however, to prevent the writer from withdrawing the permission, whether given expressly or impliedly, before the publication actually takes place (Davis v. Miller and Another, 17 Ct. Sess. Cas. 2nd Ser. 1166). According to an American Letters decision it is clear that the Government has the right of to public property in all communications addressed to its officers, and this of course carries with it the dependent right of publication; this exception is founded on principles of general policy (Folsom v. Marsh, 2 Story, 113, per Story, J.).

addressed

offices.

damages

letter.

It has not yet been decided whether an action of Measure of damages will lie at the suit of the writer for the wrongful for wron;publication of his letters (see Davis v. Miller, supra), but fulmi cation of it is thought that the plaintiff would be entitled to recover printe either nominal or substantial damages by action founded on the common law. The measure of damages would be a question of the greatest difficulty, but it is probable that the plaintiff would be entitled to nominal damages for the injury to his property, without any proof of de

E

Right of sender purely a Common

Law right.

of a work

valid.

privation of profits or consequential loss (see Blofield v. Payne, 4 B. & Ad. 410; Burnett v. Phalon, 21 How. Pr. (Amer.) 100). It would be exceedingly speculative, however, to extend the supposition to any greater length.

It will have been clearly observed that the property which the writer of a letter has in his production is exclusive by virtue of the common law, and that the question of publication is one dependent entirely upon evidence; and with respect to this the primary rule is that the sender of a written communication must, in the absence of any positive or apparent intention, be taken to have reserved the right of publication.

Copyright An author has a copyright in a portion only of a work in portion (Low v. Ward, L. R. 6 Eq. 418, per Giffard, V.-C., 37 L. J. Ch. 841), and is, it would seem, entitled to an injunction against a person who copies the whole (Mason v. Murray, 1 East, 360 (cited)); and in those cases in which part of a work is for some reason or other not entitled to protection, the copyright will be valid to the extent of the matter which will stand the test of the law (Barfield v. Nicholson, 2 Sim. & St. 1; Lawrence v. Dana, 2 Amer. L. T. (U.S.) 402; Cary v. Longman, 1 East, 358). It was at one time considered that unless a party had an exclusive right to the whole work he could not claim copyright in any portion of it, and although this opinion is founded at first sight on grounds apparently substantial, it cannot now be supported (Cary v. Longman, 1 East, 360, per L. Kenyon; Barfield v. Nicholson, supra; Lawrence v. Dana, supra; for since copyright protects the whole of a book, it must be taken a fortiori to protect any part thereof, whether consisting of text, or engravings to illustrate the text (White v. Geroch, 2 B. & Ald. 298, 1 Chit. 24; D'Almaine v. Boosey, 1 Y. & C. Ex. 288, 4 L. J. (N. S.) Ex. Eq. 21; Rowarth v. Wilkes, 1 Camp. 94;