international copyright protection.12 While congress may attach what conditions it sees fit to its grant, it will not be presumed that it has required personal action beyond the sphere of its control;43 and in the absence of anything in the context to the contrary, all the provisions of the statute contemplate only acts done and performed within the limits of the United States.*4* Thus the requirement of a notice of copyright "in the several copies of every edition published' 45 does not require the V. WHAT MAY 51 [90] A. General Requirements-1. Statutory Provisions. Since copyright in published works is purely a statutory creation,50 a copyright may be obtained only for a work falling within the statutory enumeration or description." The original Copyright Act of 1790 provided for the copyrighting of only maps, charts, and books.52 Copyright protection was, however, gradually extended by subsequent legislation,53 until, as the law stood just prior to the act of 1909, statutory copyright was authorized for a book, map, chart, dramatic or musical composition, engraving, cut, print, photograph or negative thereof, painting, drawing, chromo, statue or statuary, and a model or design intended to be perfected as a work of the fine arts.54 By the act of 1909 it is provided that the works for which copyright may be secured under its terms shall include all the writings of an author," 55 and by this adoption of the very words of the constitutional grant of power, congress has exercised to its fullest [b] False notice affixed abroad."The court below was clearly right in its conclusions as to the non-extraterritorial operation of the law as it stood prior to the amendment of 1897. Flash v. Conn, 109 U. S. 371, 3 SCt 263, 27 L. ed. 966. In saying this we do not wish to be considered as holding that where an act done in a foreign country against a penal provision of the law of the United States is but the initial step in accomplishing a subsequent violation in the United States of other penal provisions, that the act done in the foreign country might not, under some circumstances, be treated having been performed in the United States. On this question we intimate no opinion whatever, as the circumstances of the case do not require us to do so. Under the law as it stood prior to 1897 there was no provision forbidding the importation of article falsely stamped in a foreign country, or prohibiting the sale in the United States of an article falsely stamped. There could, therefore, be no possible relation between subsequent lawful acts performed in the United as an limit the power granted to secure copyright protection to authors. For purposes of administration, this act divides the subjects of copyright into thirteen classes; but it is expressly provided that this specification shall not be held to limit the subject matter of copyright. The act provides that no copyright shall subsist in the original text of any work published prior to July 1, 1909, which has not been already copyrighted in the United States. 57 56 In England there was a like gradual extension of the privilege of copyright.58 The Copyright Act of 1911 provides for copyright in every original literary, dramatic, musical, or artistic work;59 and these terms, and others included within them, are defined by the statute in broad terms.60 [91] 2. Originality and Authorship1-a. In General. A work, in order to be copyrighted, must be original, in the sense that the author has created it by his own skill, labor, and judgment, without directly copying or evasively imitating the work 44. See cases infra notes 45-49. Notice of copyright see infra United Dictionary Co. v. G. & C. Merriam Co., 208 U. Š. 260, 28 SCt 290, 52 L. ed. 478; McLoughlin v. Raphael Tuck Co., 191 U. S. 267. 24 SCt 105, 48 L. ed. 178 [aff 115 Fed. 85, 53 CCA 508]. 48. See supra § 51. 49. United Dictionary Co. v. G. & C. Merriam Co., 208 U. S. 260, 265, 28 SCt 290, 52 L. ed. 478 (where Holmes, J., said: "But it hardly would be argued that because no copyright had been taken out in England and therefore the reprint there was lawful, an American copyright could be defeated by importing the English book and reprinting from that"). 50. See supra § 66. 51. Wood v. Abbott, 30 F. Cas. No. 17.938, 5 Blatchf. 325. charts and books, as originally, but comprehending now as well all the writings of an author." National Cloak, etc., Co. v. Kaufman, 189 Fed. 215, 218. 56. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5), as amended by Act Aug. 24, 1912 (37 U. S. St. at L. 488 c 356 § 5). [a] The statutory classes are as follows: "(a) Books, including composite and cyclopedic works, directories, gazeteers, and other compilations;' '(b). Periodicals, including newspapers;' '(c) Lectures, sermons, addresses (prepared for oral delivery);' '(d) Dramatic or dramaticomusical compositions;' (e) Musical compositions; (f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character;' '(j) Photographs;' '(k) Prints and pictorial illustrations;' '(1) Motion-picture photoplays;' '(m) Motion pictures other than photo Particular subjects of copyright plays." Act March 4, 1909 (35 U. S. see infra §§ 101-143. V. 52. 1 U. S. St. at L. 124. States concerning the article falsely stamped in a foreign country." McLoughlin V. Raphael Tuck, etc., Co., 191 U. S. 267, 270, supra § 70. 24 SCt 105, 48 L. ed. 178 [aff 115 Fed. 85. 53 CCA 5081. 42. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492. [a] Reciprocal protection. The provisions of the act of March 3, 1891, extending the benefit of copyright to citizens of foreign countries on condition of reciprocal protection of American citizens, and the proclamation of the president in accordance therewith extending the benefits of the statute to British subjects, do not make the British statutes operative within the United States. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492. See also infra § 158. International copyright see infra § 453. 43. United Dictionary Co. v. G. & C. Merriam Co., 208 U. S. 260, 28 SCt 290, 52 L. ed. 478. copy [a] Legislation extending 54. U. S. Rev. St. § 4952. Act March 4, 1909 (35 U. S. St. "In keeping pace with the growth of the subject of this constitutional provision, many statutes have been enacted, extending and enlarging its protection, covering not only maps, St. at L. 1075 c 320 § 5), as amended by Act Aug. 24, 1912 (37 U. S. St. at L. 488 c 356 § 5). 57. Act March 4, 1909 (35 St. at L. 1075 c 320 § 7); Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15), rule 4. 58. 59. See supra § 69. St. 1 & 2 Geo. V c 46; Byrne v. Statist Co., [1914] 1 K. B. 622. 60. St. 1 & 2 Geo. V c 46 § 35 (1). [a] "A literary work (1) is intended to afford either information and instruction, or pleasure, in the form of literary enjoyment." Hollinrake v. Truswell, [1894] 3 Ch. 420, 428 (per Davey, L. J.). (2) "I think the words 'original literary work' mean a literary work of which the person in whom the copyright is laid, or through whom the title to the copyright is traced, is the author." Byrne v. Statist Co., [1914] 1 K. B. 622, 627. 61. Originality of: Dramatic composition see infra § 109. Musical composition see infra § 111. of another. A piracy is not the subject of a 62. Ferris v. Frohman, 223 U. S. certain [a] Originality in treatment of familiar Incidents.-Where kinds of incidents must be found in many books and plays, originality, when dealing with incidents familiar in life or fiction, lies in association and grouping of those incidents in such a manner that the work under consideration presents a ception or a novel arrangement of events. Stevenson v. Harris, 238 Fed. 432. new con [b] The novelty of a bookkeeping consists in the mode of work on keeping accounts, the names used in the items of debit and credit being of no importance. Bartlett v. Crittenden, 2 F. Cas. No. 1,076, 5 McLean 32. Rule as to literary property at common law see supra § 11. 63. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492; Edward Thompson Co. v. American Law Book Co., 130 Fed. 639 [aff 157 Fed. 1003 mem, 85 CCA 677 mem 216 U. S. 625, 30 SCt 576, 54 L. ed. (app dism 642)]; Edward Thompson American Law Book Co., 122 Fed. Co. V. 922, 59 CCA 148, 62 LRA 607 [rev 121 Fed. 907]; Broder v. Zeno Mauvais Music Co., 88 Fed. 74; Bain v. Henderson, 16 B. C. 318. a [a] Fruits of piracy.-(1) It was not the purpose or effect of the copyright law to render secure the fruits of piracy, and the copyright on piratical production is void. v. Frohman, 223 U. S. 424, 32 SCt Ferris 263, 56 L. ed. 492. if an author of a book is unscrupu(2) "Of course, lous enough to pirate and include in it the protected composition of another, no registration could give him property in that stolen." which he Walter v. Lane, [1900] A. C. had 539, 558, 2 BRC 312 [rev [1899] 2 Ch. 749, and quot Bain v. Henderson, 16 B. C. 318, 319]. [b] A piratical version of an unpublished dramatic composition is not the subject of a valid copyright. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492. R. 3 Q. B. 223, 18 ERC 578. 66 "In [$ 91 my intellectual conception.65 the subject of copyright. A mere news item is not of originality is necessary to sustain a copyright, But while some degree the courts do not show any disposition to be very opinion, 'author' involves originating, [a] Authorship.-(1) making, producing, as the inventive or master mind, the thing which is to ing, or a painting, or a photograph." be protected, whether it be a drawPer Cotton, J., in Nottage v. Jackson, 11 Q. B. D. 627, 635 [quot Burrow(2) "While the word writings may be Giles Lith. Co. v. Sarony, 111 U. S. 53, 4 SCt 279, gravings, prints, etc., it is only such 28 L. ed. 249]. liberally construed, as it has been, to include original designs for enU. S. v. Steffens, 100 U. S. 82, 94, 25 as are original, and are founded in the creative powers of the mind." L. ed. 550. eign publication.-No copyright can a original work, who does not see fit un tinguished. "It would be difficult to define, comprehensively, what char[b] Annals and authorship disthis case, we may fix the confines at acter of writing is copyrightable, and ends, and mere annals begin. Nor is what is not. But, for the purpose of the point where authorship proper speaking, this line easily drawn. author's own mind; that the product Generally embodies the thought of the author, tion something meritorious from the there has been put into the producauthorship implies that as well as the thought of others; and would not have found existence in which it sprang. the form presented, but for the distinctive individuality of mind from A mere annal, on the contrary, is the reduction to copy situation, would have observed; and of an event that others, in a like its staternent in the substantial form that people generally would have adopted. A catalogue, or a table of statistics, as or business publications generally may thus belong to either or the other of these If, in their makeup, there is evinced classes. statistics, that can gather in all that some peculiar mental endowmentthe grasp of mind, say in a table of is needful, the discrimination that adjusts their proportions-there may by the courts. be authorship within the meaning of trary, such writings are a mere notathe copyright grant as interpreted But if, on the contion of the figures at which stocks they cannot be said to bear the imor cereals have sold, or of the result of a horse race, or base-ball game, fore, to rise to the plane of authorpress of individuality, and fail, thereship. In authorship, the product has some likeness to the mind underneath it; in a work of mere notation, the mind is guide cnly to the fingers that make the notation. uct One is the prod word tion or compilation, or to an a [c] Arrangement of opera score for piano.-It seems that an arrangement of an opera score for the piano may be an original work if at the time there is no copyright in the opera itself, but otherwise not. Per Kelly, C. B., in Wood v. Boosey, L.rightable). V. one the product of opportunity." National of matter previously published will [a] Reason for rule. "It would be both inequitable and impracticable to give copyright to every printed article. Much of current publication -in fact the nothing beyond the mere notation of greater portion-is events transpiring, which, if transpiring at all, are accessible by all. It is inconceivable that the copyright grant of the constitution, and the statutes in pursuance thereof, meant to give a monopoly , same title, page and note number exacting in the enforcement of this requirement. The work need not be wholly original; but in such case copyright is acquired only in that part of the work which is the result of the author's own labor, skill, and ingenuity.68 It is immaterial that a picture represents visible actual persons or things; it is nevertheless copyrightable. rative to him, who, putting the bare recital of events in print, went through the routine formulæ of the copyright statutes." National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 297, 56 CCA 198, 60 LRA 805. Telegraphic news service as property see supra § 21. Newspaper as subject of copyright see infra 102. 67. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; Woodman v. Lydiard-Peterson Co., 192 Fed. 67 [aff 204 Fed. 921, 123 CCA 243 (reh den 205 Fed. 900, 126 CCA 434)]; National Cloak, etc., Co. v. Kaufman 189 Fed. 215; Henderson v. Tompkins, 60 Fed. 758; Brightley v. Littleton, 37 Fed. 103; Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87; Walter v. Lane, [1900] A. C. 539, 2 BRC 312. "If there is a restriction it is not to be found in the limited pretensions of these particular works. The least pretentious picture has more originality in it than directories and the like, which may be copyrighted. Drone, Copyright, 153. See Henderson v. Tompkins, 60 Fed. 758. The amount of training required for humbler efforts than those before us is well indicated by Ruskin. 'If any young person, after being taught what is, in polite circles, called "drawing," will try to copy the commonest piece of real work,-suppose a lithograph on the title page of a new opera air, or a woodcut in the cheapest illustrated newspaper of the day-they will find themselves entirely beaten.' Elements of Drawing, 1st ed. 3. There is no reason to doubt that these prints in their ensemble and in all their details, in their design and particular combinations of figures, lines and colors, are the original work of the plaintiff's designer. If it be necessary, there is express testimony to that effect. It would be pressing the defendant's right to the verge, if not beyond, to leave the question of originality to the jury upon the evidence in this case, as was done in Hegeman v. Springer, 110 Fed. 374. 49 CCA 86." Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 250, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]. [a] English statutes.-The word "original" is not used with reference to a book, in the Copyright Act, 1842 (5 & 6 Vict. c 45). Compare Fine Arts Copyright Act, 1862 (25 & 26 Vict. c 68 § 1), in which the words are: "The author of every original Painting, Drawing, and Photograph." 68. Backus v. Gould, 7 How. (U. S.) 798, 12 L. ed. 919; Hoffman v. Le Traunik, 209 Fed. 375; Cary v. Longman, 1 East 358, 102 Reprint 138, 7 ERC 78; Beullac v. Simard, 39 Que. Super. 97 [aff 39 Que. Super. 517]. See also infra §§ 95, 272. [a] Original matter in new editions. The editor of a subsequent edition is entitled to a copyright on his notes and additions, where they can be clearly separated from those of a previous edition. Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1. See also Black v. Murray, 9 Sc. Sess. Cas. 341. [b] Corrections and additions. Where a person simply makes corrections and additions to a work in which he had originally no interest, he acquires a copyright in them, and may bring an action if they are pirated. Cary v. Longman, 1 East | 358, 102 Reprint 138, 7 ERC 78. 69. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460; National Cloak, etc., Co. v. Kaufman, 189 Fed. 215; Da Prato Statuary Co. v. Giuliani Statuary Co., 189 Fed. 90; Blackwell v. Harper, 2 Atk. 93, 26 Reprint 458; Beullac v. Simard, 39 Que. Super. 97 [aff 39 Que. Super. 517[. The op [a] Reason for rule.-"It is obvious also that the plaintiffs' case is not affected by the fact, if it be one, that the pictures represent actual groups-visible things. They seem from the testimony to have been composed from hints or description, not from sight of a performance. But even if they had been drawn from the life, that fact would not deprive them of protection. posite proposition would mean that a portrait of Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. Blunt v. Patten, 3 F. Cas. No. 1,580, 2 Paine 397. See Kelly v. Morris, L. R. 1 Eq. 697, 7 ERC 102; Morris v. Wright, L. R. 5 Ch. 279. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright unless there is a restriction in the words of the act." Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 249, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]. [b] Pictorial representations of statuary made by photographing the statuary, and then preparing a cut from the photograph, are copyrightable. Da Prato Statuary Co. V. Giuliani Statuary Co., 189 Fed. 90. [c] The reproduction, in bas-relief in papier maché, of an engraving or historical painting, being a work of art, may be the subject of a copyright. Beullac v. Simard, 39 Que. Super. 517 [aff 39 Que. Super. 971. 70. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; Mifflin v. Dutton, 190 U. S. 265, 23 SCt 771, 47 L. ed. 1043 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134]; Mifflin v. R. H. White Co., 190 U. S. 260, 23 SCt 769, 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661. 61 LRA 134 (aff 107 Fed. 708)]; Holmes v. Hurst, 174 U. S. 82, 89, 19 SCt 606, 43 L. ed. 904; Woodman v. LydiardPeterson Co., 192 Fed. 67 [aff 204 Fed. 921, 123 CCA 243 (reh den 205 Fed. 900, 126 CCA 434)]; Bamforth v. Douglass Post Card, etc., Co., 158 Fed. 355; Encyclopædia Britannica Co. v. Werner Co., 135 Fed. 841 [aff 142 Fed. 966, 74 CCA 228]; Kipling v. Putnam, 120 Fed. 631, 57 CCA 295, 65 LRA 873; Fraser v. Yack, 116 Fed. 285, 53 CCA 563; Holmes v. Hurst, 80 Fed. 514, 25 CCA 610 [aff 76 Fed. 757, and aff 174 U. S. 82, 19 SCt 606, 43 L. ed. 904]; O'Neill v. General Film Co., 152 NYS 599 [aff 171 App. Div. 854, 157 NYS 1028]; Langlois V. Vincent, 18 LCJur 160. See also supra §§ 42-45. "If an author permit his intellectual production to be published either serially or collectively, his right to a copyright is lost as effectually as the right of an inventor to a patent upon an invention which he deliberately abandons to the public and this, too, irrespective of his 71 actual intention not to make such abandonment." Holmes V. Hurst, supra. [a] Registered design and patent for same invention.-(1) Patent right and copyright of design may in certain circumstances coexist in the same person in respect of the same article. The registration of a design which secures mechanical advantages may as an anticipation prevent a subsequent grant of letters patent in respect of the same article whether the applicant be the proprietor of the design or a stranger. And a grant of a patent and the publication of the patented article would prevent a design of the article being novel so as to obtain registration. Werner Motors, Ltd. V. A. W. Gamage, Ltd., [1904] 2 Ch. 580. (2) Where, however, there is a provisional specification without publication of the patented article, and then registration of the design, and that is followed by the final specification, the two rights may coexist, the right acquired by the registration of the design which was valid at the time of registration not being prejudiced by the subsequent filing of the final specification; but the right second in point of time, the copyright of design, would be held subject to the first. That would be so whether the owner of the patent and the owner of the design were the same person or two independent persons. Werner Motors, Ltd. v. A. W. Gamage, Ltd., supra. 71. Encyclopædia Britannica Co. v. Werner Co., 135 Fed. 841 [aff 142 Fed. 966, 74 CCA 228]; Fraser v. Yack, 116 Fed. 285, 53 CCA 563; Larrowe-Loisette v. O'Loughlin, 88 Fed. 896; Black v. Ehrich, 44 Fed. 793; Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433; Frohman v. Ferris, 238 Ill. 430, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492]; D'Almaine v. Boosey, 4 L. J. Exch. 21. See also supra § 45. [a] Simultaneous publication."Even after the taking effect of the act of 1891 an English author could not, after publication of his production in England, secure a copyright in this country, but in order to avail himself of that privilege it became necessary that simultaneously with his publication and securing a copyright in England he also comply with the copyright statutes in this country. A publication of his production without such compliance with our statutes prevented him from afterwards securing the benefits of our copyright statutes and rendered the publication public property in this country." Frohman v. Ferris, 238 Ill. 430, 437, 87 NE 327, 128 Am SR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492]. See also infra §§ 173, 211. [b] Interim Copyright Act of 1904. The Interim Copyright Act of Jan. 7, 1904 (33 St. at L. 4 c 2), for the protection of exhibitors of foreign literary, artistic, or musical works at the Louisiana Purchase Exposition, was held not to extend the copyright protection to books exhibited at the exposition which had been previously published in the United States. Encyclopædia Britannica Co. V. American Newspaper Assoc., 142 Fed. 966, 74 CCA 228 [aff 135 Fed. 841]. 72. Kipling v. Putnam, 120 Fed. 631, 57 CCA 295, 65 LRA 873; Larrowe-Loisette v. O'Loughlin, 88 Fed. 896. And cases supra note 70. COPYRIGHT AND LITERARY PROPERTY 73 been enacted by express statutory provision." [§§ 92-93 or en bloc; in either case it is fatal.75 An unauthorized piratical publication is no bar to a subsequent copyright by the proprietor.76 [93] c. Double Copyrighting. There is no such thing as double copyrighting; matter that has once been copyrighted cannot be copyrighted again." 73. Act March 4, 1909 (35 U. S. | Super. 485, 5 Que. Pr. 351. St. at L. 1075 c 320 § 7). 74. Meccano v. Wagner, 234 Fed. 912; Kipling v. Putnam, 120 Fed. 631, 57 CCA 295, 65 LRA 873; Lawrence v. Dana, 14 F. Cas. No. 8,196, 4 Cliff. 1. [a] Rule applied. "This new copyright protected only what was original in the 'Outward Bound' edition. It did not operate to extend or enlarge prior copyrights from the public domain the author's or remove works which, by his own act, he had dedicated to the public. If, for instance, the Messrs. Scribner should publish a new edition of Fielding's works their copyright would cover only that part of the edition which is new. It would not enable them to hold a monopoly in Fielding's writings. Any other publisher could pubfish Fielding's works with perfect propriety." Kipling v. Putnam, 120 Fed. 631, 634, 57 CCA 295, 65 LRA 873. 75. Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904 [aff 80 Fed. 514, 25 CCA 610 (aff 76 Fed. 757)]; Fraser v. Yack, 116 Fed. 285, 53 CCA 563 (Barrie's "Little Minister"). "We are quite unable to appreciate the distinction between the publication of a book and the publication of the contents of such book, whether such contents be published piecemeal or en bloc." Holmes v. Hurst, 174 U. S. 82, 89, 19 SCt 606, 43 L. ed. 904. [a] Reason for rule-"If, as contended by the plaintiff, the publication of a book be a wholly different affair from the publication of the several chapters serially, then such publication of the parts might be permitted to go on indefinitely before a copyright for the book is applied for, and such copyright used to enjoin a sale of books which was perfectly lawful when the books were published. There is no fixed time within which an author must apply for a copyright, so that it be 'before publication; and if the publication of the parts serially be not a publication of the book, might be obtained after the several a copyright parts, whether published separately or collectively, had been in general circulation for years. cannot be within the spirit of the Surely, this act." Holmes v. Hurst, 174 U. S. 82, 89, 19 SCt 606, 43 L. ed. 904 [foll Mifflin v. R. H. White Co., 190 U. S. 260, 23 SCt 769, 47 L. ed. 1040 (aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134 [aff 107 Fed. 708])]. supra § 44. See also same 77. Caliga v. Inter Ocean News- [a] Reason for rule.-"The con- as for a copyright (section 4956, Rev. St. [3 U. S. Comp. St. 1901, p. 3407]) deposits in the office of the Librarian part of an author with this requirethe required matter, and record is ment, the grant ensues, as of course, there made. Upon compliance on the under section 4952, Rev. St. [3 U. S. Comp. St. 1901, p. 3406]. So the copysimple the method of acquiring, and right is equally a grant, however when once conferred there is neither authority nor occasion for a second rily inoperative, as in the case of the grant to the author for the same production. Duplication is necessapatent for invention, and the authorities are harmonious in this view. 265, 23 SCt 771, 47 L. ed. 1043]; LawMifflin v. Dutton, 112 Fed. 1004, 50 CCA 661, 61 LRA 134 [aff 190 U. s. rence v. Dana, 14 F. Cas. No. 8,136, 4 Cliff. 1. For new matter only in new edition can another copyright be obtained. right, 146. In the case of Black v. Id.; Drone on CopyHenry G. Allen Co., supra, cited contra, which arose in equity and involved equitable considerations, the present inquiry and strict view of the proceedings for copyright were not passed upon, nor do we underduplication of copyright. stand the opinion or ruling to rest the rights of the complainant upon without saying that the author is It goes bound only copyright by such filing as he for adopts." Caliga v. Inter-Ocean Newsauthorizes or paper Co., 157 Fed. 186, 189, 84 CCA 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 150]. 76. Anglo-Canadian lishers' Music [b] Assoc. Concurrent musical and draPub- matico-musical copyrights.-In Herv. Dupuis, 27 Que. bert v. Shanley Co. 222 Fed. 344, [b] Rule applied. That the copyright taken out by the author after the serial publication of his work in the Atlantic Monthly did not prevent the republication of so much of such serial as had appeared in the magazine prior to December, 1859, and before any steps taken to obtain a copyright, was settled by this court in Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904, wherein we held that the appearance of a work in a magazine, by consent of the author, was such a publication as vitiated the copyright under section four of the copyright act of 1831. 4 Stat. at L. 436, chap. 16." Mifflin v. R. H. White Co., 190 U. S. 260, 261, 23 SCt 769, 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134 (aff 107 Fed. 708)]. Serial and book publication see infra § 219. So. the 345 [aff 229 Fed. 340, 143 CCA 460, but rev on other grounds 242 U. S. 591, 37 SCt 232], an opera had been copyrighted as a dramatico-musical work. infringement by public performance The words and music of a song forming part of were copyrighted separately as a the opera musical composition. held that its separate copyright was In a suit for of such song, the district judge valid but limited musical copyright, of the dramatico-musical copyright protection to the measure afforded by the musical copyright on the song rethe dramaticodistrict judge said: "This result no maining valid as thus limited. The doubt involves the abandonment of some rights, matico-musical copyright, but that is secured by the drabecause the plaintiffs wished a dourights at the expense of the public's ble protection. There can be no justice in rights arising from taking out a preserving their dramatic musical copyright. to retain a complete dramatic monopHad they wished oly, they had it in their power to do As it is, that monopoly remains to their complete protection, except so far as its limitation is necessary to give full scope copyright. For instance, if the perto the musical formance here had been anything beyond the least essentials to a musical reproduction of the copyrighted song, it would be protected; but it was not." This is believed to be wholly unsound, and contrary to the express provision of the statute (§ 5) which provides that the classification of the work (a mere administrative feature) shall not impair the protection granted. authorize different classes of copyThe statute does not rights. This was a case of attempted double copyrighting, and it should have been held that the second copyright was void ab initio, and given, that copyright was abandoned notice of the original copyright was to the song so separately published (see infra §§ 194, 213, 219). On appeal, the circuit court of apright was obtained" on the song as peals, "assuming that a valid copya separate musical composition, said: "The conclusion that there was infringement makes it unnecessary to inquire whether copyright can work. We express no opinion on that subsequent portion of a previously copyrighted be obtained upon a question" (229 Fed. 340, 343, 143 CCA copyright, the circuit court of ap460). As to the effect on the first quire whether the complainants can peals said: "This brings us their prior copyright of the inclaim protection for this song under matico-musical dracomposition which it has been taken. The copyfrom position secures to the proprietor, as right of a dramatico-musical already stated, the exclusive right of performance, and it makes no difference whether the performance is or is not for profit. Did the complainants, by publishing and copyrighting the song separately and apart from the previously copyrighted dramatico-musical composition of which it was a part, lose as to the part published the benefit of its copyright as a dramatico-musical composition? There can be no doubt that they have lost that right as to the republished lishing they failed to state that the part, for the reason that in repubcomic opera from which the song was taken was itself copyrighted as a as no to no com so , same title, page and note number The second attempted copyright is wholly void.78 Thus where a work has been published serially in periodical, it cannot be copyrighted subsequently in book form, and vice versa. But, in the case of double copyrighting, it goes without saying that the author is bound only by such filing for copyright as he authorizes or adopts.8 These rules are now fixed by declaratory statute.82 81 [94] d. Independent Production of Similar or Identical Result. The mere fact that two or more works on the same subject are similar to one another, or even identical, is not sufficient of itself to deprive either of the protection of the statute. Both may be original. Each, if the result of independent labor and research and not a copy or an evasive imitation of the other, is entitled to be copyrighted.8 We have failed to find any such announcement printed on the music sheets of the song. In its absence the complainants cannot claim the benefit of the prior copyright. Whether, if they had inserted a notice of the previous copyright, they could have retained the advantages of it as to the republished song, we need not now consider." On certiorari, the supreme court, in reversing this decree on the question of infringement said that it was not necessary to discuss the holding of the district court "that by the separate publication the plaintiffs' rights were limited to those conferred by the separate copyright" (242 U. S. 591, 594, 37 SCt 232). 78. Caliga v. Inter Ocean Newspaper Co., 215 U. S. 182, 30 SCt 38, 54 L. ed. 150 [aff 157 Fed. 186, 84 CC A 6341. [a] Reason for rule. To permit successive copyrights would render possible an extension of the statutory period through which the copyright runs. Mifflin V. Dutton, 112 Fed. 1004, 50 CCA 661, 61 LRA 134 [aff 190 U. S. 265, 23 SCt 771, 47 L. ed. 10431. [b] Rule applied to painting.-The attempted duplication of an existing copyright in a painting by depositing the same photograph of the same painting under a new title, and with but a slight change in description, is void, and cannot be made the basis of a suit for infringement. Caliga v. Inter Ocean Newspaper Co., 215 U. S. 182, 30 SCt 38, 54 L. ed. 150. 79. Mifflin v. Dutton, 190 U. S. 265, 23 SCt 771, 47 L. ed. 1043 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134]; Mifflin v. R. H. White Co., 190 U. S. 260, 23 SCt 769, 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134 (aff 107 Fed. 708)]; Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904 [aff 80 Fed. 514, 25 CCA 610 (aff 76 Fed. 757)]; West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 CCA 303. [a] Bound volumes and advance parts. It is neither necessary nor possible to copyright a bound volume if its contents have previously appeared in serial numbers which have been copyrighted singly. West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 CCA 303. 80. Mifflin v. Dutton, 190 U. S. 265, 23 SCt 769, 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661 (aff 107 Fed. 708)]; Miffin v. R. H. White Co., 190 U. S. 260, 23 SCt 769, 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134 (aff 107 Fed. 708)]. 81. Caliga v. Inter-Ocean Newspaper Co., 157 Fed. 186, 84 CCA 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 1501. 82. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 6). 83. Chautauqua School of Nursing v. National School of Nursing, 238 Fed. 151, 151 CCA 227 [rev 211 Fed. 1014]; Hein v. Harris, 175 Fed. 875 [aff 183 Fed. 107, 105 CCA 399]; West Pub. Co. v. Edward Thompson Co.. 169 Fed. 833 [mod on other 83 Originality, not novelty, is the requirement of the statute, in which respect copyrights differ sharply from patents.85 Independent translations of the same work will necessarily be very similar, but each is entitled to copyright." 86 So copyright may be secured on each of several dramatizations of the same story.87 Independent photographs of the same model may each be copyrighted.88 [95] e. Compilations. To come within the protection of the copyright statutes, a work need not consist of new or original matter. There may be a valid copyright for the plan of a book as connected with the selection, arrangement, and combination of the matter, although all the materials used and its subject are common to all writers.89 The mere fact that a work bears evidence that it was derived from grounds 176 Fed. 833, 100 CCA 3031; Banks v. McDivitt, 2 F. Cas. No. 961, 13 Blatchf. 163; Blunt v. Patten, 3 F. Cas. No. 1,579, 2 Paine 393; Bullinger v. Mackey, 4 F. Cas. No. 2,127, 15 Blatchf. 550; Farmer v. Calvert Lith., etc., Co., 8 F. Cas. No. 4,651, 1 Flipp. 228; Lawrence v. Cupples, 15 F. Cas. No. 8,135; Reed v. Carusi, 20 F. Cas. No. 11,642, Taney 72; Webb V. Powers, 29 F. Cas. No. 17,323, 2 Woodb. & M. 497; Morris v. Wright, L. R. 5 Ch. 279; Pike v. Nicholas, L. R. 5 Ch. 251, 7 ERC 108; Cox v. Land, etc., Journal Co., L. R. 9 Eq. 324; Morris v. Ashbee, L. R. 7 Eq. 34; Kelly v. Morris, L. R. 1 Eq. 697, 7 ERC 102; Lewis v. Fullarton, 2 Beav. 6, 17 EngCh 6, 48 ReWilkes, 1 print 1080; Roworth v. Campb. 94; Murray v. Bogue, 1 Drew. 353, 61 Reprint 487; Jefferys V. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; McNeill v. Williams, 11 Jur. 344; Baily v. Taylor, 1 Russ. & M. 73, 5 EngCh 73, 39 Reprint 28, Taml. 295, 12 EngCh 295, 48 Reprint 118; Barfield v. Nicholson, 2 Sim. & St. 1, 1 EngCh 1, 57 Reprint 245; Longman V. Winchester, 16 Ves. Jr. 269, 33 Reprint 987; Matthewson v. Stockdale, 13 Ves. Jr. 270, 33 Reprint 103; Spiers v. Brown, 6 Wkly. Rep. 352. [a] Rule applied to song.-A person will be held to be the author of a song, although there is evidence that his song is similar to a song previously published, if the parts that seem to be alike are not continuous enough nor sufficiently extended to indicate that he was guided or aided by the former song, and notwithstanding the fact that he was very young at the time he says the music was formed in his mind, especially since he had the music written out as soon as he was old enough to do so intelligently, and before any other person did so. Blume v. Spear, 30 Fed. 629. Infringement in such cases see infra § 278. 84. Chautauqua School of Nursing v. National School of Nursing, 238 Fed. 151, 151 CCA 227 [rey 211 Fed. 1014]. the write on the same subject, treat it one same 85. Beullac V. Simard, 39 Que. Super. 97 [aff 39 Que. Super. 517]. See Patents [30 Cyc 828]. [a] Copyrights and patents contrasted.-"Property in copyright is different from that, either in a patented invention, or in a trade mark. In order that a valid patent of invention can exist, there must have something new and useful covered by it, and a successful denial of the newness and usefulness of an invention would involve the determination that the patent was void. So also in a trade mark. That is attached to goods and must be something which has not existed before, nor can it be anything so similar to something which has existed before, as to be liable to be mistaken for it. The copyright act, however, does not require that the thing copyrighted should, either be new, or useful. perhaps, does require that there must be some labor or some judgment employed in connection with the preparation of the thing copyrighted. But it is perfectly clear that the labor and the skill requisite to make a model in bas-relief from a photograph, is more than ample to be the foundation for a good copyright." Beullac v. Simard, 39 Que. Super. 97, 98 [aff 39 Que. Super. 517]. It, inal.-It is not essential that any Two or more authors may 86. Translations as subjects copyright see infra § 127. of 87. Dramatizations as subjects of copyright see infra § 109. 88. Gross v. Seligman, 212 Fed. 930, 129 CCA 450. 89. Bleistein V. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed 993, 44 CCA 296]; Chautauqua School of Nursing v. National School of Nursing, 211 |