world, to be described and commented upon by whomsoever will.1

2

One who has written a treatise, for example, on the moon, cannot copyright the moon as a subject, and give out that thereafter he intends to monopolize it. Nor can he copyright the name of a cardinal virtue, and prevent the use of that title forever afterwards. Nor, if one happened to be the owner of land upon which an aereolite had fallen, or upon which a curious boulder happens to rest, which attracts the attention of scientific men, could he copyright the subject of that aereolite, or that boulder, and prevent its description by others. He would have power, indeed, to prevent an incursion upon his premises for the purpose of their examination, but his power over his property would not extend to words. He could not enjoin their discussion.

Neither, on the other hand, will the fact that the subject-matter is common, deprive the author of the product of his original labor, bona fide performed, in creating that subject-matter.

160. “I do not see why," said Lord Eldon, “if a person collects an account of natural curiosities, and such articles, and employs the labor of his mind by giving a description of them, that is as much a literary work as many others that are protected by injunction

1

1 See, however, the case of Prince Albert v. Strange, 2 De G. & Sm. 674.

2 Isaacs v. Daly, N. Y. Times, March 3d, 5th, and 6th, 1874. In that case the defendant, who was proprietor of the Fifth Avenue Theater, in the city of New York, had advertised and announced his intention of producing at that theater, on a certain night, a play called "Charity;" the plaintiff, who claimed to have written and copyrighted a play by that name, some time before, moved for an injunction, not pretending that.... the play was the same as the one he had written, but merely claiming the title "Charity." Curtis, J., refused the injunction See this case reported post, chapter on Dramatic Copyright.

and by action. It is equally competent to any other person, perceiving the success of such a work, to set about a similar work, bona fide his own; but it must be in substance a new and original work, and must be handed out to the world as such.1 1

The fact that the subject of the work is common, does not deprive an author of copyright in the product of the labor which he has bona fide spent on it, or render it less necessary for any subsequent author to have recourse to the original sources. So in Longmans v. Winchester, the plaintiffs were held entitled to copyright in the "Court Calendar," a work consisting of lists of members of the houses of peers and commons, &c., and an injunction was granted restraining the defendants from copying and publishing the plaintiffs' work. "The question before me," said Lord Eldon, "is whether it is not perfectly clear that, in a vast proportion of the work of these defendants, no other labor has been applied than copying the plaintiffs' work. From the identity of the inaccuracies, it is impossible to deny that the one was copied from the other verbatim et literatim. To the extent, therefore, in which the defendant's publication has been supplied from the other work, the injunction must go; but I have said nothing that has a tendency to prevent any person from giving to the public a work of this kind if it is the fair fruit of original labor, the subject being open to all the world; but if it is a mere copy of an original work, this court will interpose against that invasion of copyright."

A work entitled "The Guide to Science," which

Hogg v. Kirby, 8 Ves. 221.

16 Ves. 269; Vid. also Kelly v. Morris, L. Rep. 1 Eq. 702;. 14 L. J. N. S. 222; 35 L. J. 423; ch. 14, W. R. 496.

Longmans v. Winchester, ubi supra.

laid no claim to any originality with reference to the scientific doctrines treated in it, but contained, in the form of questions and answers, a scientific exposition of some of the ordinary phenomena of human life, in parts digested from different works; was held to constitute an original work, in which the author was entitled to copyright. Wood, V. C., said, "That an author has a copyright in a work of this description is beyond all doubt. If any one, by pains and labor, collects and reduces, into the form of a systematic course of instruction, those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to those questions and explanations of those phenomena; whether such explanations and answers are furnished by his own recollection of his former general reading, or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers under certain heads and in a scientific form, is amply sufficient to constitute an original work, of which the copyright will be protected.'

2

In Cary v. Faden the question is fully illustrated. In 1797, the plaintiff Cary was employed to make a survey of certain roads and highways in Great Britain. Upon the completion thereof, he published a book called "Cary's New Itinerary," which followed the plan and contained much of the materials of an older work called "Patterson's Road Book," but contained also many corrections of and additions to it. Faden having published a book bearing the same relation to Cary's that Cary's did to Patterson's, Cary filed a bill in chancery to restrain Faden from publishing his work, on the ground that it was not original, but, 1 Jarrold v. Houlston, 3 K. & J. 708. 5 Ves. 23.

1

either in whole or part, a copy of Cary's. The lord chancellor (Loughborough) refused an injunction. He said, "What right had the plaintiff to the original work? If I were to do strict justice I should order the defendants to take out of their book all that they have taken from the plaintiff, and reciprocally the plaintiff to take out of his all he has taken from Patterson. I think the plaintiff may be contented that a bill is not filed against him."1 An action was brought in 1801 by the same plaintiff against Messrs. Longman & Rees for publishing a pirated edition of the same or a similar work, the book published by the defendants being professedly a twelfth edition of the original work by Patterson, but containing nine-tenths of Cary's alterations and improvements. The plaintiff was held entitled to recover. Lord Kenyon, Ch. J., said, "Certainly the plaintiff had no title on which he could found an action to that part of his book which he had taken from Mr. Patterson's; but it is as clear that he had a right to his own additions and alterations, many of which were very material and valuable : and the defendants are answerable at least for copying those parts in their book. . . . . The courts of justice have been long laboring under an error, if an author have no copyright in any part of a work unless he have an exclusive right to the whole work."

161. "The identity of a literary work," says Blackstone,3 “consists entirely in the sentiment and the language. The same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method may be taken of exhibiting that composition to the ear or the eye of another, by recital,

by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited."

162. If the author of a work be unknown, and impossible to be ascertained, the copyright will be held to belong to the publisher.1

Where one procures from another the subjectmatter or data of a work, and, upon procuring them, frames them into a work-the authorship of the work exists in the person composing it, and not in the one furnishing the material.2

Accordingly, in the case of De Witt v. Brooks, it was held that where the incidents of a person's life were furnished by him to one who prepared them for publication, and the copyright was taken out in the name of the person furnishing the facts, it was held that he was not the author, and that a person claiming as his assignee, could not maintain an action for an infringement.

But a judicious, careful, and useful new arrangement of old and well-known material, may be produced by original labor; and if so, will be entitled to protection.4

And so, under the copyright law of 1831, it was held that, to constitute a person an author, he must, by his own intellectual labor, applied to the materials of his composition, produce an arrangement or compilation new in itself; but he cannot obtain an owner

5

1 McLean v. Moody, Scotch Sess. Cas. 2nd series, vol. 20, 1163. 2 DeWitt v. Brooks, MS. cited Law's Digest of Patent and Copyright Cases, 174.

174.

4

MS. cited Law's Digest of Patent and Copyright Cases,

* Per Lord Jeffrey in Alexander v. McKenzie, 9 Scotch Sess. Cas. 2 ser. 758.

Atwill v. Ferrett, 2 Blatchf. 39.