in the presence of two or more witnesses, engrave, etch, work, copy, print, publish, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, published or imported, shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale; one-half thereof to the proprietor and the other half to the use of the United States.

Statute Revised-July 8, 1870, ch. 230, 100, 16 Stat. 214.

Prior Statutes-May 31, 1790, ch. 15, 2, 1 Stat. 124.-April 29, 1802, ch. 36,

? 3, 2 Stat. 171.-Feb, 3, 1831, ch. 16, 27, 4 Stat. 438.

As the penalty accrues one-half to the proprietor and one-half to the United States, it is a proper subject only of a qui tam action. Stevens v. Cady, 2 Curt. 200.

A photograph is an infringement of a copyrighted engraving. The word "copy " is a general term added to the more specific terms before used for the very purpose of covering methods of reproduction not included in the words engrave, etch, or work. Rossiter v. Hall, 5 Blatch. 362.

The penalty of one dollar for every sheet, whether printed, or being printed or published, or exposed to sale, is limited to sheets in the possession of the defendant. Backus v. Gould, 7 How. Pr. 798.

Although an agent in the course of his employment copies and publishes a photograph, yet if he does it without the knowledge of his principal, the latter is not liable under this section. Schreiber v. Sharpless, 6 Fed. Rep. 175; s. c. 38 Leg. Int. 73.

A person who has infringed a copyright can not be compelled to discover the number of copies he has sold or has on hand, for this would subject him to a penalty. Chapman v. Ferry, 12 Fed. Rep. 693; s. c. 8 Saw. 191.

A bill in equity can not be maintained for the purpose of enforcing a surrender of the plates. Chapman v. Ferry, 12 Fed. Rep. 693; s. c. 8 Saw. 191.

SEC. 4966. Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just.

Statute Revised-July 8, 1870, ch. 230, § 101, 16 Stat. 214.
Prior Statute-Aug. 18, 1856, ch. 169, § 1, 11 Stat. 138.

The object of this section is to secure to the author of a copyrighted play the sole right to its performance after it is printed. While it is in manuscript he needs no protection. Boucicault v. Fox, 5 Blatch. 87; Roberts v. Myers, 23 Law Rep. 396; s. c. 17 Leg. Int. 405.

A publication of a dramatic composition after the filing of the title is a violation of this section. Boucicault v. Hart, 13 Blatch. 47.

The exclusive right to perform a dramatic composition under the statute depends upon a copyright. There is no such right if there is no copyright. Boucicault v. Hart, 13 Blatch. 47.

A composition is a written or literary work invented and set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented in dialogue and action by persons who represent it as real by performing or going through with the various parts or characters assigned to them severally, the composition is performed, acted or represented, and if the representation is in public, it is a public representation. Daly v. Palmer, 6 Blatch. 256.

To act is to represent as real by countenance, voice or gesture that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice. Daly v. Palmer, 6 Blatch. 256.

An action may be maintained for a representation after the recording of the title but before publication as well as after publication. Boucicault v. Wood, 2 Biss. 34; s. c. 16 A. L. Reg. 539.

If an author receives compensation for permitting the representation of a play after the deposit of the title, he will not lose his right of action merely in consequence of the non-publication of the play. Boucicault v. Wood, 2 Biss. 34; s. c. 16 A. L. Reg. 539.

If an author, after depositing the title of a play with the librarian of Congress, consents to its publication in a foreign country prior to the publication here, any manager has the right to import the play and use it on the stage, for this is an abandonment of his rights under our laws. Boucicault v. Wood, 2 Biss. 34; s. c. 16 A. L. Reg. 539.

mend

1891

Whenever the identity, resemblance, or dissimilarity of written or printed documents is sought to be established, the documents themselves must be produced. Boucicault v. Fox, 5 Blatch. 87.

If the alleged prior book alone is produced without the play, a witness can not be asked whether the scenery, incidents and language are not substantially the same as those in the play. Boucicault v. Fox, 5 Blatch. 87.

If neither the play nor the book from which it is alleged to have been dramatized are put in evidence, no evidence can be given of a part of the book, nor can a witness be asked whether such a part is identical with or resembles passages in the play. Boucicault v. Fox, 5 Blatch. 87.

If evidence has been taken, the court can not direct a nonsuit. Boucicault v. Fox, 5 Blatch. 87.

In determining whether an author assented to the representation of his play, his silence while the piece was being performed may be considered in connection with the other evidence. Boucicault v. Fox, 5 Blatch. 87.

SEC. 4967. Every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury.

Statute Revised-July 8, 1870, ch. 230, § 102, 16 Stat. 215.
Prior Statute-February 3, 1831, ch. 16, § 9, 4 Stat. 438.

The word "manuscript" does not include a picture. A picture is the thing itself, but a manuscript is only a description of it in language, and leaves the mind of the reader to make the picture. Parton v. Prang, 2 0. G. 619; s. c. 3 Cliff. 537; s. c. 6 A. L. T. 105.

A surreptitious publication of a substantial part of a manuscript is within the principle of the statute. Bartlett v. Crittenden, 5 McLean 32. If the author is a non-resident alien, his assignee is not entitled to protection under the statute. Keene v. Wheatley, 4 Phila. 157; s. c. 9

A. L. Reg. 331.

The jurisdiction of the Federal courts is confined to cases of threatened or actual printing and publication, and probably does not include the public performance of a manuscript play. Boucicault v. Fox, 5 Blatch. 87.

Right at Common Law.

The right of an author in his manuscript at common law has not been taken away or abridged by the statute relating to copyright. Woolsey v. Judd, 4 Duer 379; Crowe v. Aiken, 2 Biss. 208; s. c. 4 A. L. Rev. 450 Jones v. Thorne, 1 N. Y. Leg. Obs. 408.

An author at common law has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavors to realize a profit by its publication. Wheaton v. Peters, 8 Pet. 591; Bartlett v. Crittenden, 5 McLean 32; Paige v. Banks, 13 Wall. 608; s. c. 7 Blatch. 152.

The exclusive right of an author in a manuscript yet unpublished rests solely upon the right which every man has to the exclusive possession and control of the products of his own labor. Woolsey v. Judd, 4 Duer 379; Grigsby v. Breckenridge, 2 Bush. 480.

The right of the author is not confined to the material on which his manuscript is written. The exclusive right is the right of property in the words, thoughts and sentiments which in their connection form the written composition which his manuscript embodies and preserves. Woolsey v. Judd, 4 Duer 379.

The right of property in the author of a manuscript is absolute and unlimited. As owner he has an absolute right to suppress as well as to publish. Woolsey v. Judd, 4 Duer 379.

An author of a literary work or composition has a right to the first publication of it. He has a right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. Palmer v. De Witt, 47 N. Y. 532; s. c. 36 How. Pr. 222; 40 How. Pr. 293; 5 Abb. Pr. (N. S.) 13; 2 Sweeny 530.

An author's property in his manuscript is not distinguishable from any other personal property. It is governed by the same rules of transfer and succession. It is personal like other movable property, following the person of the owner, and is governed by the law of his domicile. Palmer v. De Witt, 47 N. Y. 532; s. c. 36 How. Pr. 222; 40 How. Pr. 293; 5 Abb. Pr. (N. S.) 13; 2 Sweeny 530.

After publication an author's exclusive right to his manuscript ceases at common law. Such publication may be either by words, writing, printing, lectures, sermons, or dramatic representation. If in any of these modes the public become possessed of the contents of a manuscript, without restrictions express or implied, it is such a publication as divests the author of an exclusive property in the work. Palmer v. De Witt, 5 Abb. Pr. (N. S.) 130; s. c. 36 How. Pr. 222; s. c. 40 How. Pr. 293; s. c. 2 Sweeny 530; s. c. 47 N. Y. 532.

A publication may be limited or general. It is general, whenever the communication effecting it is not restricted, both as to the persons to whom, and the purpose for which it is made. When general, it is a dedication to the public for such unlimited uses, including all modes of publishing and republishing, as it may be the means of directly or secondarily enabling any person to make. Keene v. Wheatley, 4 Phila. 157; s. c. 9 A. L. Reg. 331.

Publication is circulation before the public eye by printing or multiplied copies in writing. Grigsby v. Breckinbridge, 2 Bush 480.

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; s. c. 36 How. Pr. 222; 40 How. Pr. 293; 5 Abb. Pr. (N. S.) 130; s. c. 2 Sweeny 530.

When a literary work is exhibited for a particular purpose, or to a limited number of persons, it will not be construed as a general gift or authority for any purpose of profit or publication by others. Palmer v. De Witt, 47 N. Y. 532; s. c. 36 How. Pr. 222; 40 How. Pr. 293; 5 Abb. Pr. (N. S.) 130; s. c. 2 Sweeny 530.

If an author permits copies of his manuscript to be taken for the gratification of his friends, he does not authorize them to print it for general use. Bartlett v. Crittenden, 4 McLean 300.

The mere use of a manuscript for the purpose of imparting instruction to pupils does not constitute an abandonment of it, although they were required or permitted to make copies for that purpose. Bartlett v. Crittenden, 5 McLean 32; Bartlett v. Crittenden, 4 McLean 300.

The right of property in a manuscript may be abandoned the same as any other right of property. Bartlett v. Crittenden, 5 McLean 32.

The intention to publish is only material on the question of abandonment. Bartlett v. Crittenden, 5 McLean 32.

An unqualified publication by printing and offering for sale is a dedication to the public. Palmer v. DeWitt, 47 N. Y. 532; s. c. 36 How. Pr. 222; s. c. 40 How. Pr. 293; s. c. 5 Abb. Pr. (N. S.) 130; s. c. 2 Sweeny 530.

A person who has been employed by the State to make surveys and explorations, or to act as draughtsman for a party doing such work, has no right to publish a map from materials so collected. Comm. v. Desilver, 3 Phila. 31.

The owner of a manuscript copy of a map which has been dedicated to the public, can not interfere by injunction or otherwise with the right of others to make a copy from manuscripts owned by them, or to put them to any use desired. Rees v. Peltzer, 75 Ill. 475.

If the manuscript contains the framework of a system, it will be protected, although it is incomplete. Bartlett v. Crittenden, 4 McLean 300. An abstract book which contains a complete history of the title and incumbrances to land in a certain locality, can not be published without the consent of the compiler. Banker v. Caldwell, 3 Minn. 94.

If the author of a map gives a copy of it to a municipal corporation for public use, and sells copies to others for their use without restriction, this is such a publication as to deprive him of his proprietorship in the literary property. Rees v. Peltzer, 75 Ill. 475.

If the bill alleges that the defendant wrongfully obtained possession of the complainant's manuscript and stereotype plates and published the work, it will be dismissed, for there is ample remedy at law. Monk v. Harper, 3 Edw. Ch. 109.

A manuscript, however valuable, can not be seized by the author's creditors as property. Bartlett v. Crittenden, 5 McLean 32.

A sheriff who has levied an execution upon an unpublished work has no right to make copies thereof in the interval between the levy and the