of Rolls' Abridgment, Carter, 89; s. c. Bac. Abridg. tit. Prerogative, F. 5; Millar v. Taylor, 4 Burrow, 2304, 2383; Basket v. University of Cambridge, 1 W. Bl. 105; Manners v. Blair, 3 Bligh, N. s. 391.

Whether the theory of the royal prerogative, or of a private property in the crown be accepted, in either event the sole right of publication is recognized in the sovereign, and in either event the analogy is equally striking in the case at bar. If the right of publishing the laws in England pertained to the sovereignty here; that is to the public, to the people, or to their government, and no element of private literary property can attach to such publications; and if, as in this case, appellants as private citizens are asserting the right to publish the laws of the State; the State alone can complain.

It is true that while publishing volumes 32 to 46 the reporter received no direct salary from the State. Under provisions of law, the State purchased of him a large number of copies of those volumes at a price affording a large profit on each, which was equivalent to a salary. But it is confidently submitted that the nature of the reporter's functions and the question of copyright in his reports, are wholly independent of the method by which he receives compensation for his services, or whether, indeed, he is compensated at all. Private citizens are frequently designated to the performance of public duties, without compensation, and in the performance of such duties they may, and do, make written reports of their proceedings for the benefit of the State. It has never yet been asserted that such reports are the private literary property of the persons by whom they are made. The sole test in determining the right of private dominion and ownership in literary productions is, whether the writer is engaged in a private enterprise, and therefore an author within the meaning of the Constitution, or whether he is engaged in a public service, which dedicates the result of his labors to the public.

The doctrine of exclusive literary ownership in law reports contended for by appellee is also contrary to public policy. The decisions of the Supreme Court of Illinois are part of the law of the land. The reports of those decisions by the official reporter are made by statute evidence of the law. They are, therefore, publications of the laws of the State, in like manner as are the published statutes and acts of the Legislature. G. W. Kretzinger, for appellee.

BLATCHFORD, J. The volumes of law reports of which the plaintiff claims a copyright are in the usual form of such works. Each volume consists of a title-page, of a statement of the entry of copyright, of a list of the judges composing the Court, of a table of the cases reported in the volume, in alphabetical order, of a head-note or syllabus to each opinion, with the names of the respective counsel, and their arguments in some cases, and a statement of facts, sometimes embodied in the opinion and sometimes preceding it, and of an index, arranged alphabetically, and consisting substantially of a reproduction of the head

notes. Of this matter, all but the opinions of the Court and what is contained in those opinions is the work of the reporter, and the result of intellectual labor on his part.

The broad proposition is contended for by the defendants that these law reports are public property, and are not susceptible of private ownership, and cannot be the subject of copyright under the legislation of Congress. It is urged that Mr. Freeman, the reporter, was a public officer, whose office was created by chapter 29 of the Revised Statutes of Illinois of 1845, which enacted as follows, in regard to the Supreme Court and the reporter:

"Sec. 20. The Court shall appoint some person learned in the law to minute down and make report of all the principal matters, drawn out at length, with the opinion of the Court, in all such cases as may be tried before the said Court; and the said reporter shall have a right to use the original written opinion after it shall have been recorded by the clerk.

"Sec. 21. The reporter, before entering upon his duties, shall be sworn by some one of the justices of the Supreme Court faithfully to perform the duties of his said office. He may, for misconduct in office, neglect of duty, incompetency, or other cause shown, to be entered of record, be removed from office.

"Sec. 22. It shall be the duty of the reporter to deliver to the secretary of state, as soon as convenient after publication, such number of copies of the respective volumes of the reports of said Court as may be necessary to enable the said secretary to distribute the same in the manner provided in the following section, together with one hundred copies in addition, to be deposited in the secretary's office for the use of the State."

Section 23 provided for the distribution of the volumes by the secretary of state, and section 24 provided that, upon the delivery of the requisite number of any volume, the secretary of state should deliver to the reporter a certificate specifying the number of copies which had been so delivered, and that such certificate should entitle the reporter to a warrant drawn by the auditor of public accounts upon the treasury for an amount, for those volumes, at the price for which the books should be sold to individuals, provided, the price should not exceed the ordinary price of law books of the same description, to be determined by the auditor, treasurer, and secretary of state. These statutory provisions were amended in 1863, by making the term of office of the reporter six years, and in 1865 it was enacted that the price of the volumes to be delivered to the secretary of state should be $6 each. The reporter was given a salary, by law, in 1877, of $6,000 a year.

It is further contended that Mr. Freeman, in preparing the official edition of the reports, was not an author, within the meaning of the Act of Congress, and that it was not intended by that Act that he should assert a monopoly in the result of his official labors.

But, although there can be no copyright in the opinions of the judges, or in the work done by them in their official capacity as judges (Banks v. Manchester, ante, 36), yet there is no ground of public policy on

which a reporter who prepares a volume of law reports, of the character of those in this case, can, in the absence of a prohibitory statute, be debarred from obtaining a copyright for the volume which will cover the matter which is the result of his intellectual labor. In the present case there was no legislation of the State of Illinois which forbade the obtaining of such a copyright by Mr. Freeman, or which directed that the proprietary right which would exist in him should pass to the State of Illinois, or that the copyright should be taken out for or in the name of the State, as the assignee of such proprietary right. Even though a reporter may be a sworn public officer, appointed by the authority of the government which creates the Court of which he is made the reporter, and even though he may be paid a fixed salary for his labors, yet, in the absence of any inhibition forbidding him to take a copyright for that which is the lawful subject of copyright in him, or reserving a copyright to the government as the assignee of his work, he is not deprived of the privilege of taking out a copyright which would otherwise exist. There is, in such case, a tacit assent by the government to his exercising such privilege. The universal practical construction has been that such right exists unless it is affirmatively forbidden or taken away, and the right has been exercised by numerous reporters, officially appointed, made sworn public officers, and paid a salary, under the governments both of States and of the United States.

This question was, it is true, not directly adjudged in Wheaton v. Peters, 8 Pet. 591. In that case the owners of the copyrights of Wheaton's Reports of the Supreme Court of the United States brought a suit in equity against Mr. Peters for publishing and selling a volume of his Condensed Reports of the Supreme Court. The bill was dismissed by the Circuit Court. On an appeal by the plaintiffs to this Court one of the points urged by the defendants was that reports of the decisions of this Court, published by a reporter appointed under the authority of an Act of Congress, were not within the provisions of the law for the protection of copyrights. This Court held (1) that the plaintiffs could assert no common-law right to the exclusive privilege of publishing, but must sustain such right, if at all, under the legislation of Congress; (2) that, under such legislation, there must have been, in order to secure the copyright, a compliance with the provisions of the statute in regard to the publication in a newspaper of a copy of the record of the title of the book, and in regard to the delivery of a copy of it, after publication, to the secretary of state. The Court remanded the case to the Circuit Court for a trial by a jury as to whether there had been a compliance with the above-named requisites of the Act of Congress. . . .

If this Court had been of opinion that there could not have been a lawful copyright in the volumes of Wheaton's Reports, it would have been useless to send the case back to the Circuit Court for an inquiry whether the conditions precedent to the obtaining of a lawful copyright, under the Act of Congress, had been complied with, especially in view

of the fact that the opinion of the Court concludes (page 668) with this

statement:

"It may be proper to remark that the Court are unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right."

Therefore, the only matter in Wheaton's Reports which could have been the subject of the copyrights in regard to which the jury trial was directed was the matter not embracing the written opinions of the Court, namely, the title-page, table of cases, head-notes, statements of facts, arguments of counsel, and index. Such work of the reporter, which may be the lawful subject of copyright, comprehends also the order or arrangement of the cases, the division of the reports into volumes, the numbering and paging of the volumes, the table of the cases cited in the opinions (where such table is made), and the subdivision of the index into appropriate, condensed titles, involving the distribution of the subjects of the various head-notes, and cross-references, where such exist. A publication of the mere opinions of the Court, in a volume, without more, would be comparatively valueless to any one. The case of Wheaton v. Peters was decided at January term, 1834. In Gray v. Russell, 1 Story, 11, in 1839, Mr. Justice Story, in speaking of the question as to how far a person was at liberty to extract the substance of copyrighted law reports, says (page 20):

"In the case of Wheaton v. Peters, 8 Pet. 591, the same subject was considered very much at large. It was not doubted by the Court that Mr. Peters' Condensed Reports would have been an infringement of Mr. Wheaton's copyright, supposing that copyright properly secured under the Act, if the opinions of the Court had been or could be the proper subject of the private copyright by Mr. Wheaton. But it was held that the opinions of the Court, being published under the authority of Congress, were not the proper subject of private copyright. But it was as little doubted by the Court that Mr. Wheaton had a copyright in his own marginal notes, and in the arguments of counsel as prepared and arranged in his work. The cause went back to the Circuit Court for the purpose of further inquiries as to the fact whether the requisites of the Act of Congress had been complied with or not by Mr. Wheaton. This would have been wholly useless and nugatory unless Mr. Wheaton's marginal notes and abstracts of arguments could have been the subject of a copyright, (for that was the work which could be the subject of a copyright;) so that, if Mr. Peters had violated that right, Mr. Wheaton was entitled to redress."

This seems to us to be a proper view of the decision in Wheaton v. Peters, and that decision is as applicable where a reporter receives a compensation or salary from the government as where he does not, in the absence of any restriction against his obtaining a copyright.

In the present case, although Mr. Freeman, during the period of his preparation of volumes 32 to 46, received no direct salary from the State, it is contended by the defendants that he received from the State

compensation for his services, through the purchase by it, under a statute, of copies of his volume at a stated price of $6 per copy for 553 copies of each volume, and that this was substantially the payment of a salary to him by the State. But, as stated before, in the view we take of the case, the question of a salary or no salary has no bearing upon the subject. The general proposition that the reporter of a volume of law reports can obtain a copyright for it as an author, and that such copyright will cover the parts of the book of which he is the author, although he has no exclusive right in the judicial opinions published, is supported by authority. Curt. Copyr. 131, 132; Butterworth v. Robinson, 5 Ves. 709; Cary v. Longinan, 1 East, 358, and note, 362; Mawman v. Tegg, 2 Russ. 385, 398, 399; Hodges v. Welsh, 2 Ir. Eq. 266, 287; Lewis v. Fullarton, 2 Beav. 6; Saunders v. Smith, 3 Mylne & C. 711; Sweet v. Benning, 16 C. B. 491; Jarrold v. Houlston, 3 Kay & J. 708, 719, 720. . .

On the whole case we are of opinion that the final decree was correct, except in respect of volume 32. The amount of damages reported by the master, Mr. Bishop, as to that volume, and allowed by the final decree as part of the $6,986.05, was $926.66. That sum is disallowed, and must be deducted. The other items of recovery in the decree were proper. The injunction as to volume 32 must be vacated, and the appellee will recover his costs of this Court. The decree of the Circuit Court is reversed as to volume 32, and is affirmed in all other respects; and the case is remanded to that Court, with a direction to correct the decree in the particulars above indicated, and to take such further proceedings as may be according to law, and not inconsistent with this opinion.

201. CHILTON v. PROGRESS PRINTING AND PUBLISHING

COMPANY

COURT OF APPEAL OF ENGLAND, FROM CHANCERY DIVISION. 1895

L. R. [1895] 2 Ch. 29

THE plaintiff was the publisher of a sporting journal, published weekly at the price of 1s., called Chilton's Special Guide, which was entered at Stationers' Hall in the Registry of Copyrights. Among other items of sporting news the plaintiff gave, under the heading of "One Horse Selections," a list of the horses which in his opinion would win in races in the ensuing week. The defendant company published on each day of every race-meeting a small sheet or card at the price of ld. called Sporting Snips. They had recently adopted the system of publishing in their sheet short notices headed "The Specials — One Horse Finals," under which they give a list of horses selected as likely to win at the races of the day, with the names of the periodicals or other authorities which selected them.