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THE WRITER is published the first day of every month. It will be sent, postpaid, ONE YEAR for ONE DOLLAR.

All drafts and money orders should be made payable to The Writer Publishing Co. Stamps, or local checks, should not be sent in payment for subscriptions.

THE WRITER will be sent only to those who have paid for it in advance. Accounts cannot be opened for subscriptions, and names will not be entered on the list unless the subscription order is accompanied by a remittance.

The American News Company, of New York, and the New England News Company, of Boston, and their branches, are wholesale agents for THE WRITER. It may be ordered from any newsdealer, or direct, by mail, from the publishers.

Not one line of paid advertisement will be printed in THE WRITER outside of the advertising pages.

Advertising in THE WRITER costs fifteen cents a line, or $2.10 an inch; seven dollars a quarter page; twelve dollars a half page; or twenty dollars a page, for one insertion, remittance with the order. Dis. counts are five, ten, and fifteen per cent. for three, six, and twelve months. For continued advertising payments must be made quarterly in advance.

Contributions not used will be returned, if a stamped and addressed envelope is enclosed. THE WRITER PUBLISHING CO., 88 Broad Street, Room 414, BOSTON, MASS.

P. O. Box 1905.

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"I sent one of the best, limited-edition, two-dollar copies of my book, -,' to the for review. The review, in this case alone, did not appear. I wrote them enclosing postage for the return of the book. I received a letter from them to the effect that they'received so many books that they could not review them all,' but I did not get my book or my postage back. I then felt justified in sending them a bill for two dollars, to which I got no reply. Is this square business, or even professional etiquette? If it is, I am an anarchist. God forgive me!

The first question is: Just what is the responsibility of an editor in the case of a book sent to him for review? If the book is sent to him by the author or publisher without solicitation, it seems clear that the editor has no responsibility at all. He prints book reviews primarily in the interest of his readers, and of course he is the sole judge of what will be of interest to them. If he thinks that any new book, however much merit it may have, is not of special interest to his readers, why should he review it? The author, of course, sends his book hoping that the editor will bring it to public attention. To do this the editor must give space that his business manager looks upon as worth so many dollars an inch, and in addi

tion the time required for reading the book more or less critically and writing the review. If in his judgment—possibly mistaken the book is not one of special interest for his readers, why should he give this space and do this work? If he does review the book, in the interest of his readers, does not the author get in advertising space considerably more than the cash value of a copy of the book, and so is he not really indebted to the editor? Why should he not look on the review of a book sent unsolicited as a favor rather than as a right?

*

The retail price of the book in question was two dollars. Advertising space in the publication to which it was sent sells for several dollars an agate line. If the editor had simply acknowledged the receipt of the book in two lines of type, he would have given to the author for a copy of his book space for which an advertiser would have to pay much more in cash. As a matter of business, why should the author expect to be favored in this way?

*

Sending a book unsolicited to an editor does not make the editor responsible in any way. If he reviews the book, he does the author a favor. If he makes no mention of it, the author has no reason to complain. It is only natural, perhaps, that authors should overlook the fact that a book sent to an editor for review has little value to him unless it is of special interest to him or to his readers. The average editor takes home for his library only a very few of the reviewbooks that he receives - mostly books of reference, or of travel, or of biography, or other books of lasting value. Novels and other books of temporary interest he may give as presents to his friends. The rest of the books received probably the greater part are bundled up from time to time and sent to the second-hand book man for what they will bring a few cents for each volume. It is not flattering to authors, of course, to think that their books are regarded in this unromantic way, but such is the melancholy fact. The receipt of review books in any large editorial office arouses no

enthusiasm in the editorial breast. To the editor it means only that there is so much more work for him to do; to the business manager only that there is so much more space that he must give.

This answer to the first question raised has already suggested in part the answer to the second: "What is the responsibility of the editor in case an author asks to have an unnoticed review-book returned?" Of course, simple courtesy would say that the author's request should be complied with. Compliance, however, might not be always possible. The book might already have been disposed of. Books inevitably accumulate in editorial offices, and they are got rid of as soon as possible. The author, of course, would not expect an editor to return his book in case of non-review unless return postage were sent with it in the first place for that purpose. If, in the case which raised this question, when the request for return, accompanied by postage, was received the book was in the office, the editor should have returned it, as a matter of courtesy, but he was not bound to spend his time looking it up to see what had become of it, any more than he was bound to notice it. If he could not return the book he should, of course, have sent back the return postage.

W. H. H.

STAGE RIGHTS IN MAGAZINE
STORIES.

A decision of great importance to authors has been rendered by Judge Hazel, of the circuit court of the United States for the southern district of New York, in the suit brought by the estate of Henry J. W. Dam, to restrain public the performance of play entitled "The Heir to the Hoorah." As the Publishers' Weekly points out, Judge Hazel has brushed aside technicalities and difficulties, and has ruled vigorously that the copyright notice in a magazine covers all the contents of the magazine, and that such copyright protects the author not only against the use of the form in which he has put his work, but of the central thought or idea

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HAZEL, J. This suit in equity was brought to restrain the defendant, the Kirke La Shelle Company, from producing or publicly performing the dramatic play or composition entitled "The Heir to the Hoorah." The bill alleges that the play is an unauthorized dramatization of the published story entitled "The Transmogrification of Dan." It is first to be considered herein whether the story was protected by statutory copyright. Complainant's intestate, who was the author of the story, sold it to the Ess Ess Publishing Company, which later published the story with other articles in its copyrighted number of the Smart Set, issued in September, 1901. After the alleged infringement of the novelette, the publishing company assigned back to the author its copyright of the September issue of the magazine, the assignment, however, simply covering and including the story or novelette in controversy, together with all claims and demands against infringers thereof. The defendant contends, first, that to secure a valid copyright of his authorship and the exclusive right to dramatize, the author must have copyrighted the literary production, or the copyright must have been taken out by the purchaser; and, second, that there was no sale of the copyright, but simply of the manuscript or literary composition. But this contention is not thought maintainable, for by Section 4952 of the Revised Statutes of the United States, not only authors have the right to translate and dramatize their literary productions, but proprietors or owners by assignment upon complying with the statute are given the exclusive right of printing and vending the same. The unconditional sale of the story entitled the purchaser to protection from piracy upon securing a statutory copyright, and, moreover, it could be and was, in fact, copyrighted by the owners thereof by simply filing with the librarian of Congress the title-page of the magazine and complying with the provisions of the statute relating to copyrighting. It was not necessary to file a copy of the title of each article published in the magazine or of the author's literary composition, nor was it necessary that he should himself have secured the copyright so as to retain the right of dramatizing it. It was properly held in a recent case decided in this circuit by Judge Holt that an author can sell the exclusive right to print and publish his productions, the buyer thereby having the right to copyright it, though the author may

withhold to himself. the right to dramatize. [Ford v. Blaney, 148 Fed. 642. ] Hence, in the present case the sale or transfer of the literary composition prior to copyrighting vested the Ess Ess Publishing Company, in the absence of any reservation, with all the rights and privileges of the author, and gave it the right to secure the statutory copyright which thereafter it could assign to the author, his heirs or assigns.

The next important question relating to the dramatization of the copyrighted literary composition by the defendant without the consent of the proprietor requires us to ascertain whether the subject or so-called plot of the story or novelette was original, and whether the defendant in producing the play or drama abstracted a material portion thereof. In cases of this character the inquiry must be whether the substance of the literary composition has been taken to the injury of the complainant. Of course, if the plot or the language used by the author to develop the subject of the literary composition or the combination of incidents narrated therein was not new, or if its principal feature has been previously published, either in the form of a novel, story, or play, the complainant would not be entitled to the relief demanded, for in such case the author merely gave a new dress or coloring to an old theme or subject. But if the copyrighted literary composition or the theme or subject thereof was dramatized by another without the consent of the author, and reproduced by dialogue spoken by play actors, and scenes and incidents are introduced, coupled with stage situations by which the kernel of the literary composition is emphasized, then it may be fairly supposed that the playwright in giving a public performance of the drama endeavored to reap a profit or gain out of another's industry, against which a court of equity has power to grant relief. Whether there is a substantial similarity between the copyrighted literary composition and the play performed by the defendant is a question of fact, and the court has found comparison helpful to a decision.

The expert witness for the plaintiff testifies that the theme or subject of the story is the change of the disposition and character of "Dan," the central figure, from a man of submissive temperament in his household and toward his wife and mother-in-law, to a man of commanding and asserting mien upon his becoming a father. From this idea or conception, the author of the literary composition, by his descriptive ability and by virtue of the use of apt words, has succeeded in developing different characters, causing them to perform separate functions, and helping to emphasize the central idea that in "Dan"

becoming a father, his previous self-abnegation, his effacement or submissiveness was at an end, making it instantly warrantable on his part to peremptorily assert his rights as the father of his child and protector of his home. This subject or theme of the copyrighted story is substantially imitated in the defendant's play. No other play, drama, or literary production is called to my attention, and I have examined the exhibits in evidence, from which it may be ascertained that the subject of the author's composition, together with the various characters which give it prominence, was not original. It is true, the dialogue of the drama is not in the words of the copyrighted story, but its exact phraseology was not necessary to the adaptation of the plot or subject, or the portrayal of the different characters to the play. The actors in the play, "The Heir to the Hoorah,” portray or imitate the characters in the copyrighted story, and in addition thereto make use of incidents and situations which apparently give expression to the central theme or purpose of the author. Whatever of addition has been introduced in the play does not obscure or emasculate the central figure of the story, namely, the rejuvenated husband. The copyrighted story was not strictly a dramatic composition, although its special features, its incidents, personages, episodes plainly indicated that it was not without dramatic interest, and could by appropriate dialogue, scenes, and stage business be translated or expanded into a drama. It is enough if the essence of a play is taken from an original literary production, and it is held that one or more chapters of a novel is to be regarded as a dramatic composition. [ Drone on Copyright, p. 589. ] The playwright of "The Heir to the Hoorah," as already stated, has expanded the plot of the story, using different words. He has introduced additional characters. He has cleverly staged the play, and by the use of language and characters has given the subject of the story an excellent interpretation. But all this is unimportant if he has taken, as I think he has, the substance of complainant's authorship. [ Emerson v. Davies, 3 Story, 782; Drone on Copyright, p. 433. ] The playwright has testified that he did not use the plot or theme contained in the copyrighted story, but that the plot of the play was originated by him. Evidence has been introduced to show that the incidents and situations were familiarly known. But giving weight to the testimony of complainant's witness, Mrs. Norris, it would seem to be established that the playwright, without first obtaining the permission of the author or proprietor, plagiarized and imitated the complainant's copyrighted literary composition. The theatrical production

above mentioned has been staged at great expense, and the elaborate scenery, stage effects, translation of the story into a dramatic composition were the result of such valuable services and skill by the defendant that the court would hesitate to grant relief by injunction against the entire play, were it not that the pivotal feature of the play or the objectionable parts are seemingly inseparable from the theme of the story, and therefore adopting the general rule in cases, the said play or drama containing the literary matter which is the subject of this controversy must be enjoined. Probably the play or drama can be revamped to eliminate the aforesaid objectionable imitations. If such is the fact, and this may be shown on settlement of the restraining order, the injunction will simply cover such objectionable portions. Let complainant enter a decree in conformity with this decision with costs.

WRITERS OF THE DAY.

Henry A. Beers, whose poem, "Love, Death, and Life," appeared in Harper's Magazine for January, has been professor of English literature at Yale University since 1880. His first volume of poems, "Odds and Ends," was published in 1878, and was followed by "The Thankless Muse," in 1885, and "The Ways of Yale," published first in 1895, with an enlarged edition in 1903. Since then Professor Beers has contributed poems to the leading magazines. A number of his poems have been included in the anthologies and sonnet collections, both in England and in America. Professor Beers is also the author of "A Century of American Literature," "From Chaucer to Tennyson," "Initial Studies in American Letters," and other books of similar character.

"The

Will Gage Carey, whose story, Wolf," was printed in the Metropolitan for January, was born at Rochelle, Ill., but now lives in Atlanta, Ga., where he was at one time sporting editor of the Atlanta News. He was graduated from the University of Illinois, and while in college was a member of the University military band, and a number of his stories pertain to band life, among them being "The Silent Trombone" and "When Heiny Led the Band," which ap

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Floyd Dell, whose poem, Tamburlaine," ̈appeared in Harper's Magazine for January, was born in 1887 at Barry, Ill., and has until recently made his home in Davenport, Ia. He is now a reporter on the staff of the Chicago Evening Post. His work in verse, some part of which has appeared in Harper's, the Century, McClure's, and other magazines, is an attempt to express, in the singing measures bequeathed to us by Herrick and the Elizabethan lyrists, some distinctly modern moods. His ambitions, however, lie in the direction of novel-writing, where he hopes to find greater freedom for the expression of the ideas which he holds as a dynamist monist and Socialist.

"Lyman Eastman," the name signed to the story, "The Revenge of Big Joe," in the January Century, is the pen-name of a very busy professor of philosophy and education in the historic College of William and Mary, in Virginia. Professor H. E. Bennett is best known for his educational activities in Florida. He was graduated from the Peabody Normal College and from the University of Chicago. Although Professor Bennett has done much writing in educational lines, "The Revenge of Big Joe" is his first effort in the way of story-writing. His multifarious college duties give almost no elbowroom for the exercise of literary proclivities.

Herbert Kaufman, who is writing the series of stories on Franklyn Poynter for the Popular Magazine, of which "The Fifth John James" in the January number is one, is a well-known advertising man, besides being a newspaper and magazine writer and a novel

ist. Mr. Kaufman is only thirty years old, but at the age of nineteen he was city editor of a Washington newspaper, and at the age of twenty he was advertising manager of one of the largest department stores in Philadelphia. Nine months ago he began a series of signed editorials on every-day topics, which were published on the first page of the Worker's Magazine of the Chicago Tribune, and when these were transferred to the Chicago Record-Herald that paper increased its circulation by nearly 20,000 copies. The Red Book has also published several similar articles of his. Mr. Kaufman's series of twenty articles on advertising were published in more than 200 American newspapers. His novel, "The Stolen Throne," published several years ago, was one of the "six best sellers" for a while. The exploits of Franklyn Poynter, Commercial Free-Lance, as related in the Popular Magazine, are really business stories from the inside, for Mr. Kaufman is president of the Herbert Kaufman & Handy Company, with offices in Chicago and New York.

Randolph Marshall, author of the story, "The Fleet with Salt on Its Tail," in the Popular Magazine for January, was born in Philadelphia, where his father, William L. Marshall, is one of the oldest members of the bar. For eighteen years Mr. Marshall has been engaged in active editorial work on newspapers in Philadelphia, London, and New York, and for the most part any literary work that he has done has been disposed of through that handiest medium, the Sunday magazine. He is also the author of many one-act plays which have made the vaudeville rounds. About a year ago Mr. Marshall rejoined the staff of the New York Herald, after an absence of nine years.

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