in fact, every branch of the law that can affect real estate in its various mutations from owner to owner, sometimes by operation of law, and again by act of the parties. But the preparation of a set of abstract books which contain histories of all the titles in a county, with indexes, not only involves all the legal learning requisite to the arrangement of a single abstract, but, in addition, a great amount of skill in methodizing them into a harmonious whole, convenient of access; which skill alone, independent of the making of the abstracts, is the proper subject of protection by copyright.

Indexes to works may be copyrighted. An index to the Constitution of the United States, or the Holy Bible, may be a very valuable contribution to the number of literary productions. Certainly any one who has examined Cruden's Concordance of the Bible would never deny to him the fame of having conferred upon the world a work of inestimable value, yet it is but an index after all.

It has been a very difficult question in the courts to determine what is original and what borrowed or pirated, in a literary production. It cannot be necessary that the matter contained in a work, the thought, sentiment, and language, should be all original, to entitle the author to the protection of a copyright, because if such was the case, in the present advanced state of the sciences, learning, and literature, we might look for very few additions which would fall within the privileged sphere. It would exclude critiques upon the literary performances of others, abridgments of works beyond the reach of many, which now form a large portion of the means through which knowledge is conveyed to the people Encyclopædias, Gazetteers, Anthological Dictionaries, and a thousand other works which, although in the great part composed of extracts from the works of others, are, by their peculiar arrangement, most valuable acquisitions to the general store of knowledge, and in many cases exhibit a degree of research and learning quite equal to that displayed by authors of works purely original. It would be unfair to say that the mind that devotes a lifetime to culling the fruit and flowers from the wilderness that many laborers in an uncultivated field have caused to spring up and obscure a subject, and succeeds in rendering its otherwise forbidding approaches attractive and facile to the student, is not entitled to the same protection as he who dropped some of the original seed. In Story's Equity Jurisprudence, 940, where this subject is largely discussed, he cites as examples of works which may be considered as entirely original, those of Milton, Pope, and Sir Walter Scott, although he says they have freely used the thoughts of others. "Of others, again, the original ingredients may be so small and scattered that the substance of the volumes may be said to embrace little more than the labors of sedulous transcription and colorable curtailments of other works. There are other examples of an intermediate clåss, where the intermixture of borrowed and original materials may be seen in proportions more nearly approaching to each other, and there are others again, as in cases of maps, charts, translations,

and road books, where the materials being equally open to all, there must be a close identity or similitude in the very form and use of the common materials."

The case of maps and charts bears a very strong resemblance to the case at bar; there the material from which the map is taken, like the records of a county, is open to all. If the combined labors of the surveyor, the topographer, the historian, and the artist, furnish a map by which at one view a perfect knowledge may be had of the district or country represented, including climate, soil, productions, surface, distances, views, cities, &c., surely the compiler and delineator of such a chart should be protected and secured in the profits of his labors, against those who would appropriate them by mere transcription. Yet notwithstanding this, any other person may use the same material and produce another map of the same country, which, if the first was perfect, must for its merit depend upon its resemblance to it; and should the second map be a facsimile of the first, if it was bona fide the result of the original efforts of the author, it would be entitled to equal protection. A map is but a transcript of the region which it portrays, narrowed in compass so as to facilitate an understanding of the original. It may be said to be an abstract of the original, in the only way that the subject is susceptible of being condensed and abridged. It is a key to nature's record, as the plaintiff's abstracts were keys to the records of the titles of Ramsey County; the one is as much entitled to protection. for originality of construction as the other.

There are numerous cases reported, illustrating the nature of those original works that are entitled to the privileges of copyright, which are cited, with lengthy extracts from the opinions of the judges who decided them, in note 2, p. 271, vol. 2 of Story's Eq. Jur.; and I think the principle which runs through the reported cases would include the plaintiff's abstract books within the privileged class of works. . . . The Court erred in sustaining the demurrer to the plaintiff's complaint, and the judgment should be reversed.

200. CALLAGHAN v. MYERS

SUPREME COURT OF THE UNITED STATES. 1888

128 U. S. 617, 9 Sup. 177

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

This was a suit in equity, brought in the Circuit Court of the United States for the Northern District of Illinois, on the 17th of December, 1877, by Eugene B. Myers, against Bernard Callaghan, Andrew Callaghan, Andrew P. Callaghan, and Sheldon A. Clark, composing the firm of Callaghan & Co., Marshall D. Ewell, and Van Buren Denslow. The bill sets forth that the firm of E. B. Myers & Chandler, composed

of the plaintiff and Horace P. Chandler, became the proprietors of volumes 32 to 38, both inclusive, of the reports of the Supreme Court of the State of Illinois, known as "Illinois Reports," prepared by Norman L. Freeman; that, as such proprietors, said firm, desiring to secure a copyright for the several volumes, under the statutes of the United States, deposited in the office of the clerk of the District Court of the United States for the Northern District of Illinois, before publication, a printed copy of the title of the several volumes; and that they afterwards, and within three months of the publication of the volume, deposited in said office a copy of the work. . . .

The bill further alleges that all the volumes were prepared by Mr. Freeman, and each contained a large amount of matter original with him, and a great number of the decisions and opinions of the Supreme Court of Illinois; that, among other original matter, Mr. Freeman prepared for each case a syllabus or head-notes, and for many cases in each volume a statement of the facts of the case; that, also, in many of them he copied, or copied and arranged, the instructions ruled upon by the Court below; that he also prepared and inserted, or gave, in all or many of them, the stipulations made, or made and filed, therein, and in many of them he gave the errors assigned; that he also prepared, for each of them, a table of the cases cited therein, and a table of the cases decided, and other original matter, and so arranged said decisions and the matter therein contained, or the matter in connection with the decisions, as to make each of the books, or each of the books and the matter therein contained, convenient and valuable to the persons using the decisions; that, in respect of volumes 32 to 38, the firm of E. B. Myers & Chandler, and in respect of volumes 39 to 46, the plaintiff, purchased from Mr. Freeman all his proprietary rights in the volumes, and paid him a large consideration therefor, and for his labor and care in preparing them, and used the labor and matter of Mr. Freeman in publishing the books.

The bill also alleges, as to all of the volumes, that the plaintiff had the exclusive right to the arrangement of each of them, and the exclusive right to publish the head-notes, or syllabuses, and to the arrangement of the pages of the books, and to the division of the opinions into separate volumes, and to the table of cases cited and table of cases decided, as published in each of them, and to the arrangement of the decisions, as accompanied with the head-notes, stipulations, errors assigned, instructions, table of cases cited, table of cases reported, and indexes accompanying the same, and the exclusive right to all of said works, except to the matter contained in the opinions of the judges; that the defendants had full knowledge of the exclusive rights of the plaintiff, and attempted to buy them from him, but refused to pay the price charged by him, and thereupon proceeded to reprint and publish volumes 32 to 38, and, in doing so, used the decisions of the Supreme Court of Illinois only as published by the plaintiff, and prepared the volumes

from the books of the plaintiff, and did not procure the matter from original sources, and in all of the books used the works of the plaintiff, and copied the title-pages thereof, and used the division and arrangement of the plaintiff in the volumes, and the paging thereof, and copied the table of cases cited and the table of cases reported from each of the books of the plaintiff, and also copied from the same the stipulations, errors assigned, and instructions given by the Court; that, in publishing the statements of the cases, and in preparing the syllabuses, the defendants used the books of the plaintiff, and the changes they made were merely colorable, and were made only for the purpose of avoiding the claim of the plaintiff; that the books, as printed and published by the defendants, were all and each merely imitations of the volumes of the plaintiff, corresponding in number; that all and each of said republications by the defendants are piracies on the copyrights of the plaintiff, and the books have been made by them to take the place of, and, as far as they can, to supersede the books of the plaintiff; that the defendants are selling them to the persons who would otherwise buy the books of the plaintiff, to his great damage and loss; that the defendants threaten to republish volumes 39 to 46; and that the aggregate value of the copyrights of the plaintiff is not less than $20,000, and his damage is not less than that sum.

The members of the firm of Callaghan & Co. put in an answer to the bill. It sets up that a printed copy of volume 32 was not deposited until more than three months after publication. It avers that but a small amount of original matter was prepared by Mr. Freeman for any of the volumes 32 to 46, and that but few statements of cases were prepared by him, and those few were drawn by him from the opinions of the Court in the cases reported. It denies that he prepared any tables of cases cited for any of those volumes, and denies that he so arranged the decisions and matter contained in the volumes as to make the volumes convenient and of value to the persons using them. It avers that all matters contained in the volumes are public and common property, forming part of the law of the State of Illinois, and as such not susceptible of copyright, or in any manner literary property, in which a private citizen can have a monopoly under the Act of Congress regulating the subject of copyright; that whatever labor, literary or otherwise, was done upon the volumes by Mr. Freeman, was done in his official capacity as reporter of the decisions of the Supreme Court of Illinois, a public office then existing under and by virtue of the laws of that State, and to which Mr. Freeman had been duly appointed; and that all labor, literary or otherwise, by Mr. Freeman, in his capacity as official reporter, upon the volumes, was public and common property, not susceptible of copyright or of private literary ownership. . .

The answer also admits that, in republishing volumes 32 to 38, the defendants have used the opinions of the Supreme Court of Illinois, as published by the plaintiff, but avers that they have corrected errors

in names, citations, and other matters therein, and denies that they have prepared the books from those of the plaintiff, or used the work of the plaintiff, except in so far as plaintiff's books are free to the use of any and all persons, or have copied his title-pages, or have used his paging, or have copied his tables of cases cited or reported, or the stipulations, errors assigned, or instructions given.

On the 9th of July, 1885, a final decree was entered, adjudging that the plaintiff recover $340.70 as profits on the resales of the 156 volumes, in addition to the $4,433.44 reported by the master, Mr. Bennett, and the $6,986.05 reported by the master, Mr. Bishop, the three sums amounting to $11,760.19, and the costs of the suit. The decree granted a perpetual injunction as to volumes 32 to 46. It also restrained the defendants from selling or disposing of the stereotype plates of those volumes, and dismissed the bill as to Denslow and Ewell, without costs. . . . The report of the decision of the Circuit Court on the exceptions to the reports of the masters is found in 24 Fed. Rep. 636. From such final decree the defendants composing the firm of Callaghan & Co. have appealed to this Court.

James L. High, for appellants.

I. Law reports are public property; are not susceptible of private ownership; and are not the subject of copyright under the Act of Congress.

The framers of the Constitution plainly had in view the necessity of affording protection to the literary productions of private authors, and never intended that by virtue of such legislation a public officer could claim private dominion and ownership, or assert a monopoly in the result of his official labors, for which he was employed and paid by the State. Mr. Freeman, in the preparation of his reports, was not an author within the meaning of this Constitutional provision.

It was decided by this Court in Wheaton v. Peters, 8 Pet. 591, and is now universally conceded, that the opinions of the judges are public property, and not the subject of copyright by the reporter. This necessarily results from the relation sustained by the judges toward the people, they being public officers employed and paid to render a purely public service. The result of the labors of the judges is, therefore, the property of the people by whom and for whom they are employed; and if any such element of literary property attaches to their labors as to render them susceptible of copyright, the people alone are entitled to such copyright. In like manner the reporter being a public servant or agent, the product of his labor is likewise the property of the people; and if copyrighted at all, it can only be done in the name of, and for the benefit of the people. . . .

The early English cases under these letters patent afford strong support for the position that the laws are not private property, and are not susceptible of private ownership, the right to their publication resting in the sovereign. See The Stationers v. The Patentees about the printing