reports for the purposes expressly provided by law. This statute Myers complied with more than three months before he deposited in the clerk's office a volume of the reports containing the insertion of the notice giving the information of a copyright. It did not appear that these books were ever distributed from the secretary of state's office, but the Court held that the delivery of the copies for the use of the State was a publication of the volumes and therefore his copyright should fail. Myers did not expose the books for sale in the usual way. He was required by the statute to make delivery of them at the time he did, but that fact was held not to prevent publication, and the reason for it may be found scattered through the cases bearing upon that subject in the fact that by the delivery, whatever the occasion for it, the public, or an indefinite portion of it, were assured of access to the book without further action on the part of the author. . .

The learned counsel for the respondent, apparently not unmindful that to sustain his contention requires the Court to take a very long step in advance of any hitherto taken upon this question, urges the very large pecuniary interest involved for the plaintiff, and insists that Courts of Equity should find a way to protect property rights such as plaintiff claims, even if there are no precedents for doing so; and refers to the remarks of the Court in Piper v. Hoard, 107 N. Y. 73, 13 N. E. 626, in which the Court said: "If the most that can be said is that the case is novel, and is not brought plainly within the limits of some adjudged case, we think such fact not enough to call for a reversal of this judgment." If the plaintiff's interests are of so important a character, and the public interest would be best subserved were the law such as plaintiff insists it to be, then is presented a proper subject for legislative action. But our examination leads us to the conclusion that the present state of the law is that, if a book be put within reach of the general public, so that all may have access to it, no matter what limitations be put upon the use of it by the individual subscriber or lessee, it is published, and what is known as the common-law copyright, or right of first publication, is gone. So far as is disclosed by this record, the plaintiff was in that situation at the time of the commencement of this action. The judgment should be reversed, and a new trial granted, with costs to abide the

event.

GRAY, O'BRIEN, and HAIGHT, JJ., concur; and BARTLETT, MARTIN, and VANN, JJ., concur for reversal upon special ground as follows: We concur in the result upon the ground that the plaintiff, by depositing two copies of its reference book in the office of the librarian of Congress, published the same, even if it obtained no copyright; that, if it did obtain a copyright, it thereby waived its common-law right of literary property in said book, and its statutory rights under Federal legislation can be protected only in the Federal courts.

Judgment reversed.

207. HOLMES v. HURST

SUPREME COURT OF THE UNITED STATES. 1899

174 U. S. 82, 19 Sup. 606

APPEAL from the United States Circuit Court of Appeals for the Second Circuit.

This was a bill in equity by the executor of the will of the late Dr. Oliver Wendell Holmes, praying for an injunction against the infringement of the copyright of a book originally published by plaintiff's testator under the title of "The Autocrat of the Breakfast Table."

The case was tried upon an agreed statement of facts, the material portions of which are as follows:

Dr. Holmes, the testator, was the author of "The Autocrat of the Breakfast Table," which, during the years 1857 and 1858, was published by Phillips, Sampson & Co., of Boston, in 12 successive numbers of the Atlantic Monthly, a periodical magazine published by them, and having a large circulation. Each of these 12 numbers was a bound volume of 128 pages, consisting of a part of "The Autocrat of the Breakfast Table," and of other literary compositions. These 12 parts were published under an agreement between Dr. Holmes and the firm of Phillips, Sampson & Co., whereby the author granted them the privilege of publishing the same, the firm stipulating that they should have no other right in or to said book. No copyright was secured, either by the author or by the firm or by any other person, in any of the 12 numbers so published in the Atlantic Monthly; but on November 2, 1858, after the publication of the last of the 12 numbers, Dr. Holmes deposited a printed copy of the title of the book in the clerk's office of the District Court of the district of Massachusetts, wherein the author resided, which copy the clerk recorded. The book was published by Phillips, Sampson & Co. in a separate volume on November 22, 1858, and upon the same day a copy of the same was delivered to the clerk of the District Court. The usual notice, namely, "Entered according to Act of Congress, 1858, by Oliver Wendell Holmes, in the clerk's office of the District Court of the district of Massachusetts," was printed in every copy of every edition of the work subsequently published, with a slight variation in the edition published in June, 1874.

On July 12, 1886, Dr. Holmes recorded the title a second time, sent a printed copy of the title to the librarian of Congress, who recorded the same in a book kept for that purpose, and also caused a copy of this record to be published in the Boston Weekly Advertiser; and in the several copies of every edition subsequently published was the following notice: "Copyright, 1886, by Oliver Wendell Holmes."

Since November 1, 1894, defendant has sold and disposed of a limited number of copies of the book entitled "The Autocrat of the Breakfast Table," all of which were copied by the defendant from the 12 numbers

of the Atlantic Monthly exactly as they were originally published, and upon each copy so sold or disposed of a notice appeared that the same was taken from the said 12 numbers of the Atlantic Monthly.

The case was heard upon the pleadings and this agreed statement of facts by the Circuit Court for the Eastern District of New York, and the bill dismissed. 76 Fed. 757. From this decree an appeal was taken to the Circuit Court of Appeals for the Second Circuit, by which the decree of the Circuit Court was affirmed. 51 U. S. App. 271, 25 C. C. A. 610, and 80 Fed. 514. Whereupon plaintiffs took an appeal to this Court.

Rowland Cox, for appellant. Andrew Gilhooly, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the Court.

This case raises the question whether the serial publication of a book in a monthly magazine, prior to any steps taken towards securing a copyright, is such a publication of the same, within the meaning of the Act of February 3, 1831, as to vitiate a copyright of the whole book, obtained subsequently, but prior to the publication of the book as an entirety.

The right of an author, irrespective of statute, to his own productions, and to a control of their publication, seems to have been recognized by the common law, but to have been so ill defined that from an early period legislation was adopted to regulate and limit such right. The earliest recognition of this common-law right is to be found in the charter of the Stationers' Company, and certain decrees of the Star Chamber promulgated in 1556, 1585, 1623, and 1637, providing for licensing and regulating the manner of printing and the number of presses throughout the kingdom, and prohibiting the publication of unlicensed books. Indeed, the Star Chamber seems to have exercised the power of search, confiscation, and imprisonment without interruption from Parliament, up to its abolition, in 1641. From this time the law seems to have been in an unsettled state- although Parliament made some efforts to restrain the licentiousness of the press until the eighth year of Queen Anne, when the first copyright Act was passed, giving authors a monopoly in the publication of their works for a period of from 14 to 28 years. Notwithstanding this Act, however, the Chancery Courts continued to hold that, by the common law and independently of legislation, there was a property of unlimited duration in printed books. This principle was affirmed so late as 1769 by the Court of King's Bench in the very carefully considered case of Millar v. Taylor, 4 Burrows, 2303, in which the right of the author of "Thompson's Seasons" to a monopoly of this work was asserted and sustained. But a few years thereafter the House of Lords, upon an equal division of the judges, declared that the common-law right had been taken away by the statute of Anne, and that authors were limited in their monopoly by that Act. Donaldson v. Becket, id. 2408. This remains the law of England to the present

day. An Act similar in its provisions to the statute of Anne was enacted by Congress in 1790, and the construction put upon the latter in Donaldson v. Becket was followed by this Court in Wheaton v. Peters, 8 Pet. 591. While the propriety of these decisions has been the subject of a good deal of controversy among legal writers, it seems now to be considered the settled law of this country and England that the right of an author to a monopoly of his publications is measured and determined by the copyright Act, in other words, that, while a right did exist by common law, it has been superseded by statute.

The right thus secured by the copyright Act is not a right to the use of certain words, because they are the common property of the human race, and are as little susceptible of private appropriation as air or sunlight; nor is it the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the author. But the right is to that arrangement of words which the author has selected to express his ideas, or, as Lord Mansfield describes it,

"An incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words or sentences and modes of expression. It is equally detached from the manuscript or any other physical existence whatsoever."

4 Burrows, 2396. The nature of this property is perhaps best defined by Mr. Justice Erle in Jefferys v. Boosey, 4 H. L. Cas. 815, 867:

"The subject of property is the order of words in the author's composition, not the words themselves; they being analogous to the elements of matter which are not appropriated unless combined, nor the ideas expressed by those words, they existing in the mind alone, which is not capable of appropriation."

The right of an author to control the publication of his works at the time the title to the "Autocrat" was deposited was governed by the Act of February 3, 1831 (4 Stat. 436), wherein it is enacted:

"Section 1. That from and after the passing of this Act, any person or persons, being a citizen or citizens of the United States, or resident therein, who shall be the author or authors of a book or books, map, chart or musical composition, which may be now made or composed, and not printed and published, or shall hereafter be made or composed, . . . shall have the sole right and liberty of printing, reprinting, publishing and vending such book or books, . . . in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed."

"Sec. 4. That no person shall be entitled to the benefit of this Act, unless he shall, before publication, deposit a printed copy of the title of such book.or books... in the clerk's office of the District Court of the district wherein the author or proprietor shall reside, etc. And the author and proprietor of any such book... shall, within three months from the publication of said book, ... deliver or cause to be delivered a copy of the same to the clerk of said. district."

The substance of these enactments is that by section 1 the author is only entitled to a copyright of books not printed and published, and

by section 4 that, as a preliminary to the recording of a copyright, he must, before publication, deposit a printed copy of the title of such book, etc.

The argument of the plaintiff in this connection is that the publication of the different chapters of the book in the Atlantic Monthly was not a publication of the copyright book, which was the subject of the statutory privilege; that if Dr. Holmes had copyrighted and published the 12 parts, one after the other, as they were published in the magazine, or separately, there would still have remained to him an inchoate right, having relation to the book as a whole; that his copyright did not cover and include the publication of the 12 parts printed as they were printed in the Atlantic Monthly; and that, while the defendant had a right to make copies of those parts and to sell them separately or collectively, he had no right to combine them into a single volume, since that is the real subject of the copyright. Counsel further insisted that, if the author had deposited the 12 parts of the book, one after the other, as they were composed, he would not have acquired the statutory privilege to which he seeks to give effect; that to secure such copyright it was essential to do three things: (1) Deposit the title, "The Autocrat of the Breakfast Table"; (2) deposit a copy of the book, "The Autocrat of the Breakfast Table"; and (3) comply with the provisions concerning notice; that he could acquire the privilege of copyright only by depositing a copy of the very book for which he was seeking protection; that if the taking of a copyright for each chapter created a privilege which was less than the privilege which would have been acquired by withholding the manuscript until the book was completed, and then taking the copyright, this copyright is valid. His position, briefly, is that no one of the 12 copyrights, if each chapter were copyrighted, nor all of them combined, could be held to be a copyright, in the sense of the statute, of the book, which is the subject of the copyright in question; and that neither separately nor collectively could they constitute the particular privilege, which is the subject of the copyright of "The Autocrat of the Breakfast Table," as a whole.

We find it unnecessary to determine whether the requirement of section 4 could have been met by a deposit of the book, "The Autocrat of the Breakfast Table," prior to the publication of the first part in the Atlantic Monthly, or whether, for the complete protection of the author, it would be necessary that each part should be separately copyrighted. This would depend largely upon the question whether the three months from the publication, within which the author must deposit a copy of the book with the clerk, would run from the publication of the first or the last number in the Atlantic Monthly.

That there was a publication of the contents of the book in question, and of the entire contents, is beyond dispute. It follows from this that defendant might have republished in another magazine these same numbers as they originally appeared in the Atlantic Monthly. He