The Ode was printed in full in the issue of the paper of Sunday, September 25, with comments upon it, a sketch of Miss Monroe, and what purported to be a portrait of her. Fay was not put on the witness stand, nor was any evidence offered to show how the copy which he bought had been obtained. The Court instructed the jury that if they found 'it was obtained and sold to the defendant against the mind and will, and without the authority and consent of both the Exposition Company and Miss Monroe, the act of publication was a wrongful violation of her rights, 'and that' upon that issue the plaintiff had the burden of proof." The jury were further instructed that in actions of trespass to personal property or in actions for injury to personal property, when the circumstances showed gross or wanton or malicious disregard by the defendant of the rights of the plaintiff, the jury would have a right to give exemplary damages in excess of any actual loss which was suffered.

The testimony in the case warranted the jury in finding that the defendant had reason to know that the poem had not theretofore been published; that it was the wish, and intention, both of the exposition committee and of the plaintiff, to withhold it from publication until, in the language of the circuit judge, "it should be presented to the audience with all the advantages which the enthusiasm of the occasion could give, and unmarred by criticism or comment either polite or impolite."

The managing editor testified that he knew the ode belonged to the World's Fair, and that he made no inquiry of the World's Fair committee as to whether he had any right to buy it or not. That as to the question whether an editor of a newspaper has the right to publish a literary work unless the owner consents to it, he left that matter to be settled by the lawyers, and added "under some circumstances I believe that I have the right as an editor to publish the manuscript of a person without that person's consent." This is a re-statement of the proposition so frequently advanced when newspapers happen to be defendants, that the personal or property rights of individuals are entitled to receive no consideration at the hands of the public press whenever a violation of those rights may in the opinion of the editor promote the entertainment of the purchasers of his paper. Testimony such as this was abundantly sufficient to warrant the jury in finding that the publication of the plaintiff's ode in the World newspaper was the result of “that wanton and reckless indifference to the rights of others which is equivalent to an intentional violation of them." Milwaukee R. R. Co. v. Arms, 91 U. S. 489. In view of the testimony of the principal witness for the defendant, it seems to have escaped on this occasion with a light verdict. Plaintiff in error contends that the Court erred in instructing the jury that it might award exemplary damages. That in certain classes of cases juries are authorized to give punitive or exemplary damages to punish a wrongdoer and to deter others from the commission of a

like wrong is well-settled law in the Federal Courts and in the Courts of this State. Day v. Woodworth, 13 How. 370; Milwaukee, etc. R. R. Co. v. Arms, 91 U. S. 489; Voltz v. Blackmar, 64 N. Y. 440. In such cases exemplary damages may be given in addition to what may be proved to be the actual money loss of the plaintiff.1

SUB-TOPIC B. REGISTERED COPYRIGHT (BY STATUTE)

196. EATON S. DRONE. Treatise on the Law of Property in Intellectual Productions. (1879. pp. 73-72, in part.) The duration of copyright granted by the Parliament of Anne in 1710,- fourteen years absolute, with a contingent term of the same length, continued without change till 1814, when it was enlarged to the absolute term of twenty-eight years, without provision for extension, except that, if the author were living at the end of that period, his copyright was to continue during his life.2

Early in the reign of Victoria, it was thought to be "high time that literature should experience some of the blessings of legislation," and earnest efforts were made to secure an extension of the term during which authors might enjoy the profits of their works. The movement was begun in Parliament, under the lead of Sergeant Talfourd, in 1837, and ended with the passing of the copyright law of 1842.3. . . The term of copyright was fixed at forty-two

1 [PROBLEMS:

A dental society committee, after investigating several tooth-powders, etc., the defendant having been invited with others to exhibit his powders, etc., to them, reported on the whole subject at the Society's annual meeting (where it was discussed), and incidentally commended the defendant's powder paste; the defendant obtained a copy of the report from the staff of the professional magazine to which it had been handed, though not yet published, and used extracts as an advertisement; the report had been ordered to be retained by the Society as the Society's property; was the reading and discussion before the Society a publication? (1898, New Jersey S. D. Society v. Denticura Co., 57 N. J. Eq. 593, 41 Atl. 672.)

Is the hanging of a picture in a salon, for exhibition to the art-loving public, a publication upon which photographic copies may be taken? (1894, Werckmeister v. Lithographic Co., 63 Fed. 808.)

The plaintiff, a publisher of lithograph advertising pictures, owned an original painting, "Girl in summer dress with roses in large hat," from which he intended to print copies for sale. R., in the plaintiff's employ, surreptitiously copied the picture and sold the copy as his own to the defendant, who was ignorant of the fraud and proceeded to print and sell copies of this picture. The original picture had never been registered for copyright. The defendant is willing to cease further printing, but denies that he is liable in damages for what he has thus far done. Is he right? (Mansell v. Valley Printing Co., 1908, 1 Ch. 567, 2 Ch. 441.)

NOTES:

Manuscript, unpublished." (C. L. R., VIII, 54, 589.)

"Copyrights: What constitutes publication." (H. L. R., XII, 51, 436, XVI, 226.)

"Copyrights: Doctrine of 'publication."" (H. L. R., XVII, 266.)]

2 54 Geo. III, c. 156.

35 & 6 Vict. c. 45.

years, or during the life of the author, and seven years after his death, in case this should be a longer period than forty-two years.

Copyright in prints and engravings was first granted in 1735 by the 8 Geo. II, c. 13, whose provisions have been modified by several later acts. By 7 Geo. III, c. 38, passed in 1767, the term of protection was extended from fourteen to twenty-eight years.

The first statute for the protection of sculpture was the 38 Geo. III, c. 71, passed in 1798; but this was so defective that the law was revised in 1814 by the 54 Geo. III, c. 56, by which copyright is granted for fourteen years, with provision for an extension of fourteen years.

It was not until 1862 that statutory copyright was conferred upon authors of paintings, drawings, and photographs. By the 25 & 26 Vict. 68, passed in that year, such authors, provided they are British subjects or resident within the dominions of the crown, may acquire the "sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing and the design thereof, or such photograph and the negative thereof, by any means, and of any size, for the term of the natural life of such author, and seven years after his death."

Until 1833, there was no statute securing the exclusive right of representing a dramatic composition, and the few cases which had arisen in the courts gave dramatists little hope of protection for their common-law rights from these tribunals. The Act of 3 & 4 William IV, c. 15, was passed in 1833 to meet this want. . . .

1

In order to afford to literary property, as well as to useful inventions and discoveries, adequate protection throughout the United States by a general law, the Federal Constitution, framed in 1787, empowered Congress "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." Pursuant to this provision, the first copyright law of the United States was passed May 31, 1790. It was entitled, "An Act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies, during the times therein mentioned.” a This statute gave to authors who were citizens or residents of the United States, their heirs and assigns, copyright in maps, charts, and books for fourteen years; and provided for a second term of the same length, if the author should be living at the expiration of the first.

3

In 1831, the Acts of 1790 and 1802 were repealed, and the law relating to copyright was embodied in one statute. The term of protection was extended from fourteen to twenty-eight years with provision for a renewal for fourteen years to the author, his widow or children. . . . In 1865, photographs and negatives were brought within the provisions of the copyright laws.4

Until 1856, there was no statute giving to dramatists control over the public representation of their plays. This want was met by the Act of August 18 of that year. . . .

All statutes relating to coypright were repealed in 1870, and the entire law on the subject embodied in one act." No change was made in the duration of copyright. To the things protected by previous statutes were added paintings,

1 Art. 1, s. 8, cl. 8.

3 4 id. 436.

2

1 U. S. St. at L. 124.

4 13 id. 540.

Act of July 8, 1870, ss. 85 et seq.; 16 U. S. St. at L. 212.

drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts. A printed copy of the title of every book was required to be filed with the Librarian of Congress before publication; and two copies of the book, to be delivered, within ten days after publication, to the same officer. In the case of paintings and certain other works of art, a description must be filed before and a photographic copy delivered after publication.

In 1873-74, the copyright, with all other statutes of the United States, was revised.1

In 1874, it was provided that the copyright notice appearing in a book or on a work of art might be in the form previously in use, or in the words "Copyright, 18-, by A. B." 2

Property in intellectual productions is recognized and protected in England and the United States, both by the common law and by the statute. But, as the law is now expounded, there are important differences between the statutory and the common-law right. The former exists only in works which have been published within the meaning of the statute; and the latter, only in works which have not been so published. In the former case, ownership is limited to a term of years; in the latter, it is perpetual. The two rights do not coexist in the same composition; when the statutory right begins, the common-law right ends. Both may be defeated by publication. Thus, when a work is published in print, the owner's common-law rights are lost; and, unless the publication be in accordance with the requirements of the statute, the statutory right is not secured.

197. PARLIAMENT OF GREAT BRITAIN AND IRELAND. An Act for the Encouragement of Learning by vesting the copies of printed books in the authors or purchasers of such copies during the time therein mentioned. (1709. 8 Anne, c. 19. Pickering's Statutes at Large, vol. 12, p. 82.) Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty, that it may be enacted, and Be it enacted by the Queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, That from and after the tenth day of April, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer; and that the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of

1 U. S. Rev. St. ss. 4948-4971.

218 U. S. St. at L. 78.

printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer; and that if any other bookseller, printer, or other person whatsoever, from and after the tenth day of April, one thousand seven hundred and ten, within the times granted and limited by this Act, as aforesaid, shall print, reprint, or import, or cause to be printed, reprinted, or imported, any such book or books, without the consent of the proprietor or proprietors thereof first had and obtained in writing, signed in the presence of two or more credible witnesses; or knowing the same to be so printed or reprinted without the consent of the proprietors, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such book or books, without such consent first had and obtained, as aforesaid; then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask and make waste paper of them; and further, That every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her, or their custody, either printed or printing, published, or exposed to sale, contrary to the true intent and meaning of this Act. . . .

II. And whereas many persons may through ignorance offend against this Act, unless some provision be made, whereby the property in every such book, as is intended by this Act to be secured to the proprietor or proprietors thereof, may be ascertained, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known; be it therefore further enacted by the authority aforesaid, That nothing in this Act contained shall be construed to extend to subject any bookseller, printer, or other person whatsoever, to the forfeitures or penalties therein mentioned, for or by reason of the printing or reprinting of any book or books without such consent, as aforesaid, unless the title to the copy of such book or books hereafter published shall, before such publication, be entered in the register book of the company of stationers, in such manner as hath been usual, which register book shall at all times be kept at the hall of said company, and unless such consent of the proprietor or proprietors be in like manner entered as aforesaid, for every of which several entries, six pence shall be paid, and no more; which said register book may, at all seasonable and convenient time, be resorted to, and inspected by any bookseller, printer, or other person, for the purposes before mentioned, without any fee or reward. . . .

IX. Provided, That nothing in this Act contained shall extend, or be confirmed to extend, either to prejudice or confirm any right that the said universities, or any of them, or any person or persons have, or claim to have, to the printing or reprinting any book or copy already printed, or hereafter to be printed. . . .

XI. Provided always, That after the expiration of the said term of fourteen years, the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years.

198. PUBLIC LAWS OF THE UNITED STATES OF AMERICA. An Act to amend and consolidate the Acts respecting Copyright. (1909, March 4, c. 320. 35 Stats. at Large, 1075.) Sec. 1. [Copyright exclusive rights conferred.] That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right: