in the bill. He confessed to Jones, that he took a copy of the manuscript, with a view of publishing it, and that he did publish it in 1845. After the publication of his book, he admitted, to other witnesses, that the system of his work was the same as Bartlett's. It seems Crittenden became a student in the school of Bartlett and Jones, conducted by Jones at St. Louis, and in which he acquired his knowledge of bookkeeping. The manuscript of Bartlett was used in that school, and it was there that the defendant made out his copy. . . .

It is argued, to bring the case within the ninth section, that the whole of any manuscript must be published; that the principle of law in relation to colorable alterations of a printed book, or a fair abridgment of it, does not apply under this section to a manuscript. If the whole of the manuscript must be published, will the omission of a line or a word, evade the statute? That it will, would seem to be the argument of the counsel. Under such a construction, the question might well be asked, of what value to an author is the statute? It purports to protect him against a fraudulent use of his manuscript; but practically it gives him no protection. It has been passed in mockery of his right. He is the sport of every man who has the disposition and the opportunity to pirate his manuscript. No such rule of construction is admissible. Has a substantial part of the manuscript been published? Does the book of the defendant contain Bartlett's system of book-keeping? Of this there can be no doubt. Such a publication is within the above section. It renders the manuscript valueless.

Was there an abandonment of the manuscript by Bartlett? This is the only remaining point to be considered, and it is the one most relied on in the defence. It satisfactorily appears from the evidence, that Bartlett intended to publish his manuscript. And this is only material on the question of abandonment. His right of property in no way depends on his intention in this respect. His manuscript was used in the school taught by himself in Cincinnati, and by the partnership school taught by Jones in St. Louis. In both these schools the manuscript was studied by the pupils, and they were required to copy certain parts of it, and were at liberty to copy the whole. These schools, and especially the one at Cincinnati, have been in operation several years. And under these circumstances, it is contended, there was an abandonment of the manuscript.

Bartlett's right of property in his manuscript may be transferred or abandoned, the same as any other right of property. Where the copyright of a published work is secured, under the statute, the author, by using the work in imparting instruction to his pupils, or by disposing of it to a friend, does not thereby transfer his exclusive right to publish it, or incur a suspicion that he intends to abandon it. And how does this differ from the case under consideration? In both cases the law gives a right of property to the author, and a remedy to enforce that right. And in both cases he may transfer or abandon that right. The evidence

of a transfer or abandonment must be as clear and as specific in the one case as in the other. An acquiescence in the publication of his manuscript, or in the republication of his printed book, would authorize the presumption of an assignment or of an abandonment. To make a gift. of a copy of the manuscript is no more a transfer of the right or abandonment of it, than it would be a transfer or an abandonment of an exclusive right to republish, to give the copy of a printed work. In his treatise on Equity (section 943), Mr. Justice Story says:

"In cases 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 justly be 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 be construed as a general gift or authority for any purposes of profit or publication, to which the receiver may choose to devote them.”

And he says, to prevent the publication of manuscripts, without the consent of the author, an injunction should be issued. . . . Sparks had procured, from the representatives of Washington, the right of publishing his letters and other writings, and had done so in twelve volumes. Upham, in his Life of Washington, had taken many of these letters from Sparks, they never having been published before. On a bill filed, Mr. Justice Story said: "Unless there be a most unequivocal dedication of private letters and papers by the author, either to the public or some private person, I hold that the author has a property therein, and that the copyright thereof exclusively belongs to him." And he granted an injunction. Folsom v. Marsh [Case No. 4901]. The manuscript of Bartlett was used in his school at Cincinnati, and in the school at St. Louis, for the purpose of imparting instruction to the pupils, and it does not appear, from the evidence that copies were required or permitted to be taken of it for any other purpose. There is nothing in the testimony from which an implication can arise, that Bartlett consented to the publication of his manuscript by the defendant, or that he ever abandoned it. It seems he was much excited when he was informed of the publication of Crittenden, and shortly afterwards instituted this

suit.

An injunction will be granted to restrain the defendants from a further publication of the first ninety-two pages of the work, or sale of it; and a reference is made to a master to ascertain the number of copies sold, and the number on hand, &c., and that he report at the next term.

195.

MONROE v. PRESS PUBLISHING COMPANY

UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT. 1896

73 Fed. 196

THIS case comes here on writ of error to review a judgment of the Circuit Court, Southern District of New York, entered December 16, 1894, upon a verdict for $5,000, in favor of defendant in error, who was plaintiff below.

The action was for damages for unlawfully publishing in the World newspaper a poem written by the plaintiff to be delivered on the occasion of the Dedication of the Columbian Exposition, or World's Fair, in Chicago. The facts appear in the opinion.

LACOMBE, Circuit Judge. At the time when preparations were being made for the opening ceremonies of the World's Fair, or Columbian Exposition, in Chicago, plaintiff, a resident of that city, who was engaged in the literary profession, had published poems and prose writings and had an excellent reputation as an authoress, was invited by the com mittee on ceremonies to write and deliver a poem at the dedicatory exercises. That invitation was given March, 1891. The dedicatory exercises were had on October 21, 1892, in the presence of a vast concourse of people. They included the delivery of addresses by orators of well-known ability, no effort was spared to make them effective, and they were, by reason of the event which they commemorated, of exceptional interest to the country at large. For the public utterances of orator or poet, who had been selected to speak on that day and in that place, the occasion was unique.

The plaintiff accepted the invitation and after many months of careful work produced an ode of some 400 lines. After it had been shown to the committee on ceremonies and suggestions made as to changes she revised it, reducing its length to about 375 lines and delivering the final revised version to the committee on September 20, 1892. Fifty-six lines of the ode were lyrical songs, intended to be sung; the original version of the ode was shown to a Mr. Chadwick, who wrote the music for these songs, and the fifty-six lines were published with the music so composed in order to properly rehearse the chorus. Except of these fifty-six lines there had, down to this time, been no publication of the ode by the plaintiff or by any one else. The copies which were given to the members of the committee on ceremonies and to a so-called literary committee, were delivered to them solely to enable them to decide whether the poem was one suitable and worthy of their acceptance as the ode to be delivered at the opening exercises. Such a delivery of copies of a literary production is not a publication and could not prejudice the owner's common-law rights. Bartlett v. Crittenden, 4 McLean, 300; 5 id. 32.

On September 23, 1892, plaintiff met the acting chairman of the

committee on ceremonies, who informed her that the poem was satisfactory and the matter arranged, and paid her $1,000. Whereupon she signed the following receipt:

"Received, Chicago, the 23rd day of September, 1892, from the World's Columbian Exposition, one thousand dollars, ($1,000,) in full payment for ode composed by me.

"It is understood and agreed that said Exposition Company shall have the right to furnish copies for publication to the newspaper press of the world and copies for free disposition if desired, and also may publish same in the official history of the dedicatory ceremonies; and subject to the concession herein made, the author expressly reserves her copyright therein.

"HARRIET MONROE."

The first question to be determined, and it is the important question in the case, is what property rights to the ode remained to the plaintiff after September 23, 1892? The evidence indicates that the receipt quoted above expressed item by item the conditions of the contract between Miss Monroe and the committee, which was not otherwise reduced to writing. The defendant contends that by the first clause of this receipt she transferred to the committee her entire common-law right of property in the manuscript; that the residue of the receipt is a nullity; that it can not be construed as impairing, in any way, the full rights of ownership given by the first clause; that the second paragraph was intended only as a reservation of the right to take out a copyright under the United States statute, and was powerless to secure even that, since publication without the statutory copyright notice is authorized, and the poem being once thus published, all right to restrain future piracy would be lost.

We are unable to accept this construction; the whole instrument is to be construed together and manifestly it contemplates something short of a complete transfer of all rights to the committee. A reservation by the author "subject to the concession herein made" of her copyright in the poem imports a reservation of common law as well as of statutory copyright; and it must be made clear either upon the face of the instrument itself, or otherwise by competent proof, that the word "copyright" was used in some more restricted sense. To the committee was given not only the right to have the poem delivered on the occasion of the dedicatory ceremonies, but also the right to publish it in the official history thereof, and the right to furnish copies for publication to the newspaper press of the world, and the right to furnish copies for free distribution. This was all the committee needed for its purposes, and having secured all it needed, there is nothing surprising in its leaving all other rights to the author. When the committee chose to avail of its concession and publish the poem, that act would terminate the common-law copyright; but until publication that right survived, and by the terms of the agreement was not conveyed to the committee, but reserved to the author. Any unauthorized publication would be

a trespass upon that right of property, and right of action therefor would still be in the author.

The contention of the plaintiff in error, that the passage by Congress of the copyright statutes has abrogated the common-law right of an author to his unpublished manuscript, is unsupported by authority. The statutes secure and regulate the exclusive property in the future publication of the work, after the author shall have published it to the world. But this is a very different right from the ownership and control of the manuscript before publication.

...

"That 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, cannot be doubted. . . . The argument that a literary man is as much entitled to the product of his labor as any other member of society, cannot be controverted, . . . [at least until] he shall have sold it publicly." Wheaton v. Peters, 8 Peters, 657, 658. And that common-law right may be enforced in the Federal Courts, whenever diversity of citizenship gives those Courts jurisdiction of the parties, irrespective of whatever additional means of redress are provided by sec. 9 of the Act of Congress of February 3, 1831, now sec. 4967, U. S. Revised Statutes; Bartlett v. Crittenden, 4 McLean, 300; 5 id. 32; Keene v. Wheatley, 9 Am. Law Reg. 33; Palmer v. De Witt, 47 N. Y. 532. The various assignments of error, therefore, which cover both the refusal of the Court to direct a verdict in favor of defendant, and also so much of the charge as instructed the jury that plaintiff had property rights which would be trespassed upon by an unauthorized publication of her ode, are unsound.

On September 23d, the day the money was paid and the receipt signed, the New York World, a newspaper published by defendant, received a telegram from one Fay, its agent in Chicago, saying that a copy of the ode could be obtained for $150, and asking whether it should be paid and the ode procured. On the next day, the managing editor of the World directed its purchase and ordered it sent that afternoon and night to the World by telegraph. While the ode was in transit, a message was received from the Associated Press to the effect that it was understood that a copy of the ode had gotten out somehow, and that its publication was forbidden on the ground that it was copyrighted. Fay was thereupon communicated with, and replied that the copy which he had did not have any copyrighting words upon it, and that there was no indication upon it that it was copyrighted. Thereupon, and on September 24th, the following dispatch was sent to Fay in Chicago: "We will take our chances on it. Interview Miss Monroe to-morrow and get a good talk with her about Ode and literature generally. Explain to her that the World could not miss an opportunity to give the public such a grand poem, and tell her how much better to have the World treat it as it will to-morrow, making it the great feature of the day, than to have it peddled around among the little papers. THE WORLD."