Page 380.

against one who violates any of the exclusive rights included in the copyright as therein defined. But the intention of Congress is found in the general language that "any person entitled thereto, upon complying with the provisions of this act, shall have the exclusive right,” etc., which refers to the act of 1909. Again in section 63 of the act of 1909 we find this express provision:

That all laws or parts of laws in conflict with the provisions of this act are hereby repealed, but nothing in this act shall affect causes of action for infringement of copyright heretofore committed now pending in the courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law.

We may concede that the great purpose in the enactment of the copyright law of 1909 was to bring together all the statutes applicable to the subject of copyright, and in many instances to enlarge the protection secured by copyright, particularly by protecting the works of authors and composers which had theretofore been regarded as insufficiently protected; yet, notwithstanding this purpose, we must construe section 63 as limiting the remedy in instances where the cause of action for infringement arose prior to July 1, 1909, or where causes were then pending, or to instances where there has been a violation of the statutes which existed prior to July 1, 1909, but which might not be prosecuted until after that date.

(2) We therefore cannot uphold the argument that the appellant now has a cause of action herein which has been given by virtue of the act of 1909; hence are confined to ascertaining whether, under the law as it stood prior to July 1, 1909, the appellants can claim that defendant infringed upon its copyright for a musical composition. The statute under which the song, "In the Garden of My Heart," was copyrighted in August, 1908, is section 4952 of the Revised Statutes, as amended by act March 3, 1905, ch. 1432, 33 Stat. 1000, which reads:

The practical interpretation which for a long time had been given to this statute by the Copyright Office for the registration of copyrights required the applicant to state whether the article for which he desired copyright is a book, musical composition, engraving, or other thing as defined. Articles named in the copyright statutes as sub

ject to copyright were classified on the application blanks, and the rule has provided that, if only the words of a song were desired to be protected, the application should be made out for a "book"; whereas, if protection was desired for both words and music, the application had to be made for a "musical composition." The Copyright Office in 1905, in further interpretation of the statute enumerating the classes of articles which became subjects of copyright protection, informed persons generally that, "if the words only of a song are desired to be protected, the designation 'book' should be used." Under these rules a copyrighted "musical composition" covered words and music; while, if the applicant intended to copyright only the words of a song, he must have designated his work under the classification of "book," which has been construed to be a literary composition. (Littleton et al. v. Oliver Ditson Company, C. C., 62 Fed. 597; Hervieu v. J. S. Ogilvie Pub. Co., C. C., 169 Fed. 978.) Appellant urges, however, that section 3 of the copyright law of 1909 will give it protection. That section reads:

That the copyright provided by this act shall protect all the copyrightable component parts of the work copyrighted. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this act.

The difficulty with this contention is that the statute reaches only copyright provided by the act of 1909; whereas, in the present instance, the musical composition was copyrighted under an earlier act, which gave a cause of action, the remedy for which was preserved, as already said, by the provisions of section 63 of the act of 1909. From these views, it follows that what might have been copyrighted as a literary production under the classification of a book cannot be said to be a reproduction of a Page 381. musical composition when distributed without staff notation.

(3) The decree of the district court with relation to costs was not unjust. The suit as brought and tried in the lower court involved two distinct musical compositions. Inasmuch as the complainant prevailed in part and failed in part, the court did not abuse its discretion in making a division of costs.

Affirmed.

[221 Federal Reporter, pp. 376-381.]

Date in President's proclamation, Op. Atty. Gen., July 24, 1911.

506

COPYRIGHT LAW-DATE IN PRESIDENT'S PROCLAMA

TION.

Under section 8 of the copyright act of March 4, 1909 (35 Stat. 1077), the President is required to determine by proclamation the existence of the reciprocal conditions upon which alien authors and composers may acquire the general privileges under said act, and the date when the reciprocal condition was actually met by the laws of any foreign state or nation is the one which should be inserted in the proclamation.

DEPARTMENT OF JUSTICE,

July 24, 1911:

SIR: I have the honor to acknowledge receipt of your letter of the 15th instant, inclosing certain communications from the Librarian of Congress and the register of copyrights.

From these it appears that the Cuban secretary of state, on May 29, 1911, informed the American minister at Habana that the legislation of Cuba "at present conceded" to citizens of the United States similar rights to those accorded under section 1 (e) of the copyright law of March 4, 1909 (35 Stat. 1075), and requested for the citizens of Cuba the reciprocal benefits given by that section.

You ask my views as to the proper date to be inserted in the proclamation of the President to be made as provided by section 8 of the act.

The date when the reciprocal condition was actually met by the laws of Cuba is the one which should be inserted in the proclamation. (See my letter to you of May 6, 1911, 29 Op. 64.) From the information contained in the letters transmitted to me it does not affirmatively appear that this reciprocal condition existed prior to May 29, 1911.

This is the date, then, to appear in the proclamation, unless you have or can obtain information showing that such condition actually existed at an earlier day, in which event such earlier date is the one to be stated in the proclamation.

Respectfully,

The Secretary of State.

GEORGE W. WICKERSHAM.

[29 Opinions of the Attorneys General, pp. 209-210.]

Regulations governing the importation of moving-picture T. D. 33258, motion picfilms under the copyright act of March 4, 1909. T. D. tures, Mar. 10, 31754 of July 17, 1911, modified.

TREASURY DEPARTMENT, March 10, 1913.

To collectors and other officers of the customs:

Attention is invited to section 30 of the copyright act of March 4, 1909, as follows:

That the importation into the United States of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited.

The following regulations governing the importation of moving-picture films are hereby promulgated for the guidance of officers of the customs:

1. A "piratical copy" of a film is defined as a film which constitutes either an actual copy or a substantial reproduction of a legally copyrighted film produced and imported in contravention of the rights of the copyright proprietor.

2. Collectors will admit to entry imported films concerning which either (a) adverse copyrights are claimed by parties in interest, or (b) an infringement only is claimed by a copyright proprietor other than the importer. In such cases the copyright claimants will be remitted to their rights at law or in equity.

3. Collectors will not permit entry of imported films concerning which either (a) representations are made. that they are piratical copies and such representations are not denied by the importers, or (b) if the collector is satisfied they do, in fact, constitute piratical copies as above defined.

1913.

Page 373.

4. Collectors will detain films covered by the preceding regulation and report the facts to the department for instructions.

5. If the collector is not satisfied that an imported film is a piratical copy, and the importer files an affidavit. denying that it is in fact such a piratical copy, and alleging that the detention of the film will result in a material depreciation of its value or loss or damage to him, the film will be admitted to entry, unless a written demand for its exclusion is filed by the copyright proprietor or other party in interest, setting forth that the imported film is a piratical copy of a film legally copyrighted in the United States, and unless there is also filed with the collector a good and sufficient bond conditioned to hold the importer or owner of such film harmless from any loss or damage resulting from its detention in the event that the same is held by the department not to be prohibited from importation under section 30.

6. Upon the filing of such demand and bond the collector will cause the film to be detained, and will fix a time at which the parties in interest may submit evidence to substantiate their respective claims, which evidence shall be reduced to writing at the expense of the parties. in interest and transmitted by the collector to the department, with such report and recommendation as he may deem proper.

7. No film will be presumed to be prohibited from entry as a piratical copy under said act, and the burden of proof that any film is in fact a piratical copy will be upon the party making such claim.

8. If the film is held by the department to be a piratical copy, its seizure and forfeiture will be directed in accordance with section 32 of the copyright act, and the bond will be returned to the copyright proprietor, but if not so held, the collector will be directed to release the film and transmit the bond to the importer.

9. Regulations contained in T. D. 31754 of July 17, 1911, so far as they relate to moving-picture films, are hereby modified accordingly.

(88725-4.)

JAMES F. CURTIS,

Assistant Secretary.

[24 Treasury Decisions, pp. 372–73.]