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[$ 90] A. General Requirements-1. Statutory Provisions. Since copyright in published works is purely a statutory creation, 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 subse

, just prior

, 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

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

already 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.co

[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

an

an

[b] False notice affixed abroad.- 44. See cases infra notes 45-49. charts and books, as originally. but "The court below was clearly right 45. U. S. Rev. St. $ 4962.

comprehending now as well all the in its conclusions as to the non-ex

46. United Dictionary Co. v. G. & writings of author." National traterritorial operation of the law as C. Merriam Co., 208 U. Š. 260, 28 SCt Cloak, etc., Co. v. Kaufman, 189 Fed. it stood prior to the amendment of 290, 52 L. ed. 478.

215, 218. 1897. Flash V. Conn, 109 U. S. 371, Notice of copyright see

infra 56. Act March 4, 1909 (35 U. S. 3 SCt 263, 27 L. ed. 966. In saying $$ 194-197, 212, 219.

St. at L. 1075 C 320 8 5), as amended this we do not wish to be considered 47. United Dictionary Co. v. G. & hy Act Aug. 24, 1912 (37 U. S. St. as holding that where an act done in C. Merriam Co., 208 U. Š. 260, 28 SCt at L. 488 c 356 § 5). a foreign country against a penal 290, 52 L. ed. 478; McLoughlin v. [a] The statutory classes are as provision of the law of the United Raphael Tuck Co. 191 U. s. 267. 24 follows: "(a) Books, including comStates is but the initial step in ac- SCi 105. 48 L. ed. 178 [aff 115 Fed. posite and cyclopedic works, direccomplishing a subsequent violation in 85, 53 CCA 508).

tories, gazeteers, and other compilathe United States of other penal pro

48. See supra § 51.

tions;' '(b). Periodicals, including visions, that the act done in the 49. United Dictionary Co. v. G. & newspapers;' '(c) Lectures, sermons, foreign country might not, under C. Merriam Co., 208 V. S. 260, 265, addresses (prepared for oral delivsome circumstances, be treated as 28 SCt 290, 52 L. ed. 478 (where ery);' '(d) Dramatic or dramaticohaving been performed in the United Holmes, J., said: “But it hardly musical compositions; (e) Musical States. On this question we intimate would be argued that because no compositions; (f) Maps;'(g) Works no opinion whatever, as the circum- copyright had been taken out in Eng- of art; models or designs for works stances of the case do not require us

land and therefore the reprint there of art;' '(h) Reproductions of a work to do so. Under the law as it stood

was lawful, an American copyright of art;' *(i) Drawings or plastic prior to 1897 there was no provision could be defeated by importing the works of a scientific or technical forbidding the importation of

an

English book and reprinting from character;' '(j) Photographs:'. '(k) article falsely stamped in a foreign that").

Prints country, or prohibiting the sale in

and pictorial illustrations;' 50. See supra § 66.

(1) Motion-picture photoplays;' '(m) the United States

of
article 51. Wood v. Abbott, 30 F. Cas. No.

Motion pictures other than photofalsely stamped. There could. there. 17.938, 5 Blatchf. 325. fore, be no possible relation between

Particular subjects of copyright St. at L. 1075 C 320 $ 5), as amended

plays.'Act March 4. 1909 (35 U. S. subsequent lawful acts performed in see infra $8 101-143.

by Act Aug. 24, 1912 (37 U. S. St. at the United States concerning the 52. 1 U. S. St. at L. 124.

L. 488 c 356 § 5). article falsely stamped in a foreign

National Cloak, etc., Co. V.

57. country." McLoughlin

Act March 4, 1909 (35 St. at L. v.

Fed.
Raphael Kaufman, 189

215. See also

1075 Tuck, etc., Co., 191 U.

320 $ 7); Rules and ReguS. 267, 270, supra $ 70. 24 SCt 105, 48 L. ed. 178 [aff 115 la Legislation extending

lations for Registration of Claims to

copyFed. 85. 53 CCA 508). right.-Historical other prints Copyright (Copyright Office Bul. No.

15), rule 4. Ferris v. Frohman, 223 U. S. were added by the Act of 1802 (2 U.

58. 424, 32 sct 263, 56 L. ed. 492. S. St. at L. 171); musical composi

See supra § 69.

59. [a] Reciprocal protection.-The tions, cuts, and engravings, by the

St. 1 & 2 Geo. V c 46; Byrne provisions of the act of March 3, Act of 1831 (4 U. S. St. at L. 436);

v. Statist Co., (1914] 1 K. B. 622. 1891, extending the benefit of cony- performing rights in dramatic com

60. St. 1 & 2 Geo. V c 46 $ 35 (1). right to citizens of foreign countries positions, by the Act of 1856 (11 U. S. [a] “A literary work (1) is inon condition of reciprocal protection St. at L. 138); photographs, by the tended to afford either information of American citizens, and the procla- Act of 1865 (13 U. S. St. at L. 540); and instruction, or pleasure, in the mation of the president in accord- and paintings, drawings, chromos, form of literary enjoyment.' Hollinance therewith extending the benefits statues, statuary,

and models rake v. Truswell, (1894] 3 Ch. 420, of the statute to British subjects, designs intended to be perfected as 428 (per Davey, L. J.). (2) "I think do not make the British statutes works of the fine arts, by the Act of

the words 'original literary work' operative within the United States. 1870 (16 U, S. St. at L. 198).

mean a literary work of which the Ferris v. Frohman, 223 U. S. 424, 32 54. U. S. Rev. St. $ 4952.

person in whom the copyright is SCt 263, 56 L. ed. 492. See also infra 55. Act March 4, 1909 (35 U. S. St. laid, or through whom the title to § 158. at L. 1075 C 320 $ 4).

the copyright is traced. is the auInternational copyright see infra "In keeping pace with the growth thor." Byrne v. Statist Co., (1914] § 453.

of the subject of this constitutional 1 K. B. 622, 627. 43. United Dictionary Co. v. G. & provision, many statutes have been 61. Originality of: C. Merriam Co., 208 U. S. 260, 28 SCt enacted, extending and enlarging its Dramatic composition see infra § 109. 290, 52 L. ed. 478.

protection, covering not only maps, Musical composition see infra § 111.

53.

с

or

or

62

on

be

was

of another. A piracy is not the subject of a intellectual conception.65 A mere news item is not valid copyright.63 À mere copyist is not an author. 64 the subject of copyright. But while some degree Authorship implies the exercise of mental powers of originality is necessary to sustain a copyright, and the production in concrete form of an original the courts do not show any disposition to be very 62. Ferris v. Frohman, 223 U. S. R. 3 Q. B. 223, 18 ERC 578.

[a]
Authorship.-(1) "In

my 424, 32 sct 263, 56 L. ed. 492; Pagano [d] Sketch appropriated from for- opinion, `author involves originating. V. Chas. Beseler Co., 234 Fed. 963; | eign publication. No copyright can making, producing, as the inventive Cooper V. James, 213 Fed. 871; Du be acquired in a sketch appropriated or master mind, the thing which is to Puy v. Post Telegram Co., 210 Fed. from foreign publication. Johnson be protected, whether it be a draw883, 127 CCA 493; Hoffman v. Le V. Donaldson, 3 Fed. 22, 18 Blatchf. ing, or a painting, or a photograph." Traunik, 209 Fed. 375; Courier Lith. 1 287.

Per Cotton, J., in Nottage v. Jackson, Co. v. Donaldson Lith. Co., 104 Fed. [e] Contrary view.-(1)

"It
is

11 Q. B. D. 627, 635 [quot Burrow993, 44 CCA 296 [rev other submitted that copyright can Giles Lith, Co. v. Sarony, 111 U. S. grounds 188 U. S. 239, 23 Sct 298, claimed in a work which is a piracy 53. 4 SCt 279, 28 L. ed. 249). 47 L. ed. 4601; Benny. Leclercq, 3 of another copyright work, provided (2) "While the word writings may be F. Cas. No. 1,308; Boucicault v. Fox, that the piracy is not a mere slavish liberally construed, as it has been, 3 F. Cas. No. 1,691, 5 Blatchf. 87; copy or, possibly, obtained by fraud.

to include original designs for enEmerson v. Davies,' 8 F. Cas. No. Slingsby Y, Bradford Patent Truck, gravings, prints, etc., it is only such 4,436, 3 Story 768; Jollie v. Jaques, etc., Co., [1905] W. N. 122. In the

as are original, and are founded in 13 F. Cas. No. 7,437, 1 Blatchf. 618; case of Cary v. Faden, 5 Ves. Jr. 24,

the creative powers of the mind." Lawrence V. Dana, 15 F. Cas. No. 31 Reprint 453, Lord Eldon, in refus- U. S. v. Steffens, 100 U. S. 82, 94, 25 8,136, 4 Cliff. 1; Bartlett v. Critten-ing an injunction to restrain an in- L. ed. 550. den, 17 F. Cas. No. 1,076, 5 McLeanfringement of the copyright in a [b]. Annals and authorship dis32; Reed v. Carusi, 20 F. Cas. No. road book, appears to have been in tinguished.-"It would be difficult to 11,642, Taney 72; Richardson v. Mil- fluenced by the fact that the plain- define, comprehensively, what charler, 20 F. Cas. 'No. 11,791; Lazarus tiff's work was an infringement of acter of writing is copyrightable, and v. Charles, L. R. 16 Eq. 117; Sayre the copyright in an earlier work, but what is not. But, for the purpose of V. Moore, 1 East 361 note b, 102 Re

it is difficult to see why, in principle, this case, we may fix the confines at print 139; Cary v. Longman, 1 East this should affect the right to copy- the point where authorship proper 358, 102 Řeprint 358, 7 ERC 78; Jar- right, so long as the infringer has ends, and mere annals begin. Nor is rold v. Houlston, 3 Kay & J: 708, 69 done independent work. Take, for

this line easily drawn. Generally Reprint 1294; Cable v. Marks, 52 L. example, the case of a person who speakingauthorship implies that J. Ch. 107; Moffatt v. Gill, 86 L. T. translates a copyright work into an

there has been put into the producRep. N. S. 465; Baily v. Taylor, 1 other language. Why, on principle, Russ. & M. 73, 5 EngCh_73, 39 Re- should anyone be at liberty to appro-author's own mind; that the product

tion something meritorious from the print" 28, Tami. 295, 12 EngCh 295, priate the translator's independent embodies the thought of the author, 48 Reprint 118; Barfield v. Nichol- labor because his translation

as well as the thought of others; and son, 2 Sim. & St. 1, 1 EngCh 1, 57 not authorised by the author of the

would not have found existence in Reprint 245; Black v. Murray, 9 Sc. original work, who does not see fit

to Sess. Cas. 341; Church v. Linton, 25 prevent the publication of the

the form presented, but for the disOnt. 131. translation? Moreover, the unauthor- which it sprang.

tinctive individuality of mind from (a)

A mere annal, on Originality in treatment of ised translation of to-day, may befamiliar Incidents. Where certain come an authorised translation to- of an event that others, in a like

the contrary, is the reduction to copy kinds of incidents must be found in

morrow. The same argument applies situation, would have observed; and many books and plays, originality, to any unlawful abridgment, collec

its staternent in the substantial form when dealing with incidents familiar tion or compilation, or to

an unin life or fiction, lies in association authorised photograph of an artistic that people generally would have

work. and grouping of those incidents in

The argument that a piracy

adopted. A catalogue, or a table of such a manner that the work under may be entitled to protection as

statistics, er business publications consideration presents a new

generally may thus belong to either copyright receives support from Art. ception or a novel arrangement of 2 of the Revised Convention of Berne If, in their makeup. there is evinced

one or the olher of these classes. events. Stevenson v. Harris, 238 Fed.

which provides that 'trans432. iation's

some peculiar mental endowment

to be entitled to pro[b] The novelty of a work on tection as original works, whereas

the grasp of mind, say in a table of bookkeeping consists in the mode of Art. 6 of the original Berne Con

statistics, that can gather in all that keeping accounts, the names used in vention only accorded such protec: adjusts their proportions—there may

is needful, the discrimination that the items of debit and credit being tion to 'lawful' translations. of no importance. Bartlett v. Crit- deliberately suppressing the word

be authorship within the meaning of tenden, 2 F. Cas. No. 1,076, 5 Mc-lawful in the Revised Convention,

the copyright grant as interpreted Lean 32. the signatories to the Convention

by the courts. But if, on the conRale as to Uterary property at including Great Britain-have signi-trary, such writings are a mere notacommon law see supra $ 11. fied their intention to protect unau

tion of the figures at which stocks 63. Ferris v. Frohman, 223 U. S. thorised translations of course, with

or cereals have sold, or of the result 424, 32 SCt 263, 56 L. ed. 492; Edward out prejudice to the rights of the

of a horse race, or base-ball game, Thompson Co. V: American Law Book original author." Copinger Copyright they cannot be said to bear the imCo., 130 Fed. 639 [aff 157 Fed. 1003 (5th ed) pp 52. 53. See also Mac

press of individuality, and fail, theremem, 85 CCA 677 mem (app dism Gillivray Copyright p 46 (where the fore, to rise to the plane of author216 U. S. 625, 30 SCt 576, 54 L. ed. same opinion is expressed). (2) "A ship. In authorship, the product has 642)); Edward Thompson Co. V. mere copyist has no right to obtain

some likeness to the mind underneath American Law Book Co., 122 Fed. a copyright for his work, but, even

it; in a work of niere notation, the 922, 59 CCA 148, 62 LRA 607 (rev in that case, where the copy has been

mind is guide cnly to the fingers that 121 Fed. 907]: Broder v. Zeno Mau- difficult to obtain, or where a con

make the notation. One is the prodvais Music Co., 88 Fed. 74; Bain v. siderable amount of skill or address

uct of originality; the other the Henderson, 16 B. C. 318.

has been necessary in selecting and product of opportunity." National [a] Fruits of piracy.- (1) It was arranging the material to be copied,

Tel. News Co. v. Western Union Tel. not the purpose or effect of the copy- good copyright may be had." Co., 119 Fed. 294, 297, 56 CCA 198, 60 right law to render secure the fruits Beullac v. Simard, 39 Que. Super. LRA 805. of piracy, and the copyright on 97, 101 saff 39 Que. Super. 517].

[c] Mere mechanical aggregation piratical production is void. Ferris 64. Beullac Simard, 39 Que. of matter previously published will v. Frohman, 223 U. S. 424, 32 SCt Super. 97 [aff 39 Que. Super. 517]. not support a copyright. Holmes v. 263, 56 L. ed. 492. (2) "Of course,

65.

Bleistein v. Donaldson Lith. Hurst, 174 U. S. 82, 83, 19 SCt 606, if an author of a book is unscrupu- Co., 188 U. S. 233, 23 Sct 298, 47 L. 43 L. ed. 904 (case of "The Autocrat lous enough to pirate and include in ed. 460 (rev 104 Fed. 993, 44 CCA

of the Breakfast Table"). it the protected composition of an- | 296); Holmes v. Hurst, 174 U. S. 82, 66. National Tel. News Co. other, no registration could give him 19 SCt 606, 43 L. ed. 904; Burrow

Western Union Tel. Co., 119 Fed. 294, property in that which

had Giles Lith. Co. v. Sarony, 111 U. S. 56 CCA 198, 60 LRA 805; Tribune Co. stolen." Walter v. Lane, [1900] A. C. 53, 4 SCt 279, 28 L. ed. 349 [aff 17 V. Associated Press, 116 Fed. 126: 539, 558, 2 BRC 312 [rev (1899] 2 Ch. Fed. 591); Meccano v. Wagner, 234 Walter v. Steinkopff, (1892] 3 Ch. 489; 749, and quot Bain v. Henderson, 16 Fed. 912; Werckmeister v. American Springfield v. Thame, 89 L. T. Rep. B. C. 318, 319).

Lith. Co., 134 Fed. 321, 69 CCA 553, N. S. 242. [b] A piratical version of an un- 68 LRA 591 (rev 126 Fed. 244]; [a] Reason for rule-"It would published dramatic composition is National Tel. News Co. v. Western be both inequitable and impracticable not the subject of a valid copyright. Union Tel. Co., 119 Fed. 294, 56 CCA to give copyright to every printed Ferris v. Frohman, 223 U. S. 424, 32 198, 60 LRA 805; Courier Lith. Co. v. article. Much of current publication SCt 263, 56 L. ed. 492. Donaldson Lith. Co., 104 Fed. 993, 44 -in fact the greater

portion--is [c]. Arrangement of opera score CCA 296 [rev on other grounds 188 nothing beyond the mere notation of for piano.-It seems that an arrange- U. S. 239, 23 SCt 298, 47 L. ed. 460]; events transpiring, which, if transment of an opera score for the piano J. L. Mott Iron Works v. Clow, 82 piring at all, are accessible by all. may be an original work if at the Fed. 316, 27 CCA 250; Libraco It is inconceivable that the copyright time there is no copyright in the Shaw Walker, 58 Sol, J. 48 (holding grant of the constitution. and the opera itself, but otherwise not. Per that a card index system is not copy- statutes in pursuance thereof, were Kelly, C. B., in Wood v. Boosey, L. 'rightable).

meant to give a monopoly of nar

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exacting in the enforcement of this requirement.87 [192] b. Matter Previously Published. Where The work need not be wholly original; but in such general publication has been made of a work withcase copyright is acquired only in that part of the out copyright, a subsequently attempted formal work which is the result of the author's own labor, copyright is void,to whether such prior publication skill, and ingenuity. It is immaterial that a pic- was made in this or any foreign country." Works ture represents visible actual persons or things; it already in the public domain are not the subject of is nevertheless copyrightable.

copyright,72 and this rule, although long settled, has

69

а.

rative to him, who, putting the bare 358, 102 Reprint 138, 7 ERC 78.

actual intention not to make such recital of events in print, went 69. Bleistein v. Donaldson Lith. abandonment." Holmes v. Hurst, through the routine formulæ of the Co., 188 U. S. 238, 23 Sct 298, 47 L. supra. copyright statutes." National Tel. ed. 460; National Cloak, etc., Co. v. [a] Registered design and patent News Co. v. Western Union Tel. Co., Kaufman, 189 Fed. 215; Da Prato for same invention (1) Patent 119 Fed. 294, 297, 56 CCA 198, 60 Statuary Co. v. Giuliani Statuary Co., right and copyright of design may LRA 805.

189 Fed. 90; Blackwell v. Harper, 2 in certain circumstances coexist in Telegraphic news service as prop- Atk. 93, 26 Reprint 458; Beullac v. the same person in respect of the erty see supra g 21.

Simard, 39 Que. Super. 97 (aff 39 Que. same article. The registration of a Newspaper as subject of copyright Super. 5171.

design which secures mechanical adsee infra § 102.

[a] Reason for rule-'It is ob- vantages may as an anticipation pre67. Bleistein v. Donaldson Lith. vious also that the plaintiffs' case is vent a subsequent grant of letters Co., 188 U. S. 238, 23 Sct 298, 47 L. not affected by the fact, if it be one, patent in respect of the same article ed. 460 [rev 104 Fed. 993, 44 CCA that the pictures represent actual whether the applicant be the pro296); Woodman v. Lydiard-Peterson groups_visible things. They seem prietor of the design or a stranger. Co., 192 Fed. 67 [aff 204 Fed. 921, 123 from the testimony to have been And a grant of a patent and the pubCCA 243 (reh den 205 Fed. 900, 126 composed from hints or description, lication of the patented article would CCA 434)]; National Cloak, etc., not from sight of a performance. prevent a design of the article being Co. v. Kaufman 189 Fed. 215; Hen- But even if they had been drawn novel so as to obtain registration. derson v. Tompkins, 60 Fed. 758; from the life, that fact would not Werner Motors,

Ltd.

A. W. Brightley, v. Littleton, 37 Fed. 103; deprive them of protection. The op- Gamage, Ltd., (1904) 2 Ch. 580. Boucicault v. Fox, 3 F. Cas. No. 1,691, | posite proposition would mean that a (2) Where, however, there is a pro5 Blatchf. 87; Walter v. Lane, (1900) portrait of Velasquez or Whistler visional specification without pubA. C. 539, 2 BRC 312.

was common property because others lication of the patented article, and "If there is a restriction it is not might try their hand on the same then registration of the design, and to be found in the limited pretensions | face. Others are free to copy the that is followed by the final specifiof these particular works. The least original. They are not free to copy cation, the two rights may coexist, pretentious picture has more origin- the copy. Blunt v. Patten, 3 F. Cas. the right acquired by the registration ality in it than directories and the No. 1,580, 2 Paine 397. See Kelly v. of the design which was valid at the like, which may be copyrighted. Morris, L. R. 1 Eq. 697, 7 ERC 102; time of registration not being prejuDrone, Copyright, 153. See Hender- Morris v. Wright, L. R. 5 Ch. 279. diced by the subsequent filing of the son v. Tompkins, 60 Fed. 758. The The copy, is the personal reaction

final specification; but the right amount of training required for of an individual upon nature. Per second in point of time, the copyright humbler efforts than those before us sonality always contains something of design, would be held subject to is well indicated by Ruskin. 'If any unique. It expresses its singularity the first. That would be so whether young person, after being taught even in handwriting, and very

the owner

of

the patent and the what is, in polite circles, called modest grade of art has in it some- owner of the design were the same "drawing," will try to copy the com- thing irreducible, which is one man's person or two independent persons. monest piece of real work,--suppose alone. That something he may copy- Werner Motors, Ltd. v. A. W. Gama lithograph on the title page of a right unless there is a restriction age, Ltd., supra. new opera air, or a woodcut in the in the words of the act." Bleistein 71.

Encyclopædia Britannica Co. cheapest illustrated newspaper of the

v. Donaldson Lith. Co., 188 U. S. 239, v. Werner Co., 135 Fed. 841 (aft 142 day—they will_find themselves en

249, 23 SCt 298, 47 L. ed. 460 (rev | Fed. 966, 74 CCA 228); Fraser v. tirely beaten.' Elements of Drawing, 104 Fed. 993, 44 CCA 296).

Yack, 116 Fed. 285, 53 CCA 563; Lar1st ed. 3. There is no reason to [b] Pictorial representations of rowe-Loisette v. O'Loughlin, 88 Fed. doubt that these prints in their en

statuary made by photographing the 896; Black V. Ehrich, 44 Fed. 793; semble and in all their details, in statuary, and then preparing a cut Black v. Henry G. Allen Co., 42 Fed. their design and particular combina- from the photograph, are copyright- 618, 9 LRA 433; Frohman v. Ferris, tions of figures, lines and colors, are

able. Da Prato Statuary Co.

V. 238 Ill. 430, 87 NE 327, 128 AmSR the original work of the plaintiff's Giuliani Statuary Co., 189 Fed. 90. 135, 43 LRANS 639 [aff 223_U. S. 424, designer. If it be necessary, there is

(c)

The reproduction, in bas-relief 32 SCt 263, 56 L. ed. 492]; D'Almaine express testimony to that effect. It in papier maché, of an engraving or v. Boosey, 4 L. J. Exch. 21. See also would be pressing the defendant's historical painting, being a work of supra § 45. right to the verge, if not beyond, to art, may be the subject of a copy

[a] Simultaneous publication. leave the question of originality to

right. Beullac v. Simard, 39 Que. "Even after the taking effect of the the jury upon the evidence in this Super. 517 (aff 39 Que. Super. 97]. act of 1891 an English author could case, was done in Hegeman v.

70. American Tobacco Co.

not, after publication of his producSpringer, 110 Fed. 374. 49 CCA 86."

Werckmeister, 207 U. S. 284, 28 SCt tion in England, secure a copyright Bleistein v. Donaldson Lith. Co., 188 72, 52 L. ed. 208, 12 AnnCas 595; in this country, but in order to avail U. S. 239, 250, 23 sct 298, 47 L. ed.

Mifflin v. Dutton, 190 U. S. 265, 23 himself of that privilege it became 460 (rev 104 Fed. 993, 44 CCA 296).

SCt 771, 47 L. ed. 1043 (aft 112 Fed. necessary that simultaneously with [a] English statutes, -The word 1004. 50 CCA 661, 61 LRA 134): his publication and securing a copy"original" is not used with reference Mifflin v. R. H. White Co., 190 U. S. right in England he also comply with to a book, in the Copyright Act, 1842 260, 23 SCt 769, 47 L. ed. 1040 (aff the copyright statutes

this (5 & 6 Vict. c 45). Compare Fine 112 Fed. 1004, 50 CCA 661, 61 LRA country. A publication of his proArts Copyright Act, 1862 (25 & 26 134 (aff 107 Fed. 708)]; Holmes V. duction without such compliance Vict. c. 68 $ 1), in which the words Hurst, 174 U. S. 82, 89, 19 SCt 606, with our statutes prevented him are: "The author

of every 13 L. ed. 904; Woodman v. Lydiard- from afterwards securing the benefits original Painting, Drawing

and Peterson Co., 192 Fed. 67 [aft 204 of our copyright statutes and renPhotograph."

Fed. 921, 123 CCA 243 (reh den 205 dered the publication public property 68. Backus v. Gould, 7 How. (U. Fed. 900, 126 CCA 434)]; Bamforth in this country." Frohman v. Ferris, S.) 798, 12 L. ed. 919; Hoffman v. Le v. Douglass Post Card, etc., Co., 158 238 Ill. 430, 437, 87 NE 327, 128 Am Traunik, 209 Fed. 375; Cary v. Long- Fed. 355; Encyclopædia Britannica SR 135, 43 LRANS 639 (aff 223 U. S. man, 1 East 358, 102 Reprint 138, Co. v. Werner Co., 135 Fed. 841 [aft 424, 32 SCt 263, 56 L. ed. 492).

See 7 ERC 78; Beullac v. Simard, 39 Que. 142 Fed. 966, 74 CCA 228); Kipling v. also infra 88 173, 211. Super. 97 [aff 39 Que. Super. 517]. Putnam, 120 Fed. 631, 57 CCA 295, 65 [b] Interim Copyright Act of See also infra 88 95, 272.

LRA 873; Fraser V. Yack, 116 Fed. 1904.-The Interim Copyright Act of [a] Original matter in new edi. 285, 53 CCA 563; Holmes v. Hurst, 80 Jan. 7, 1904 (33 St. at L. 4 c 2), for tions.-The editor of a subsequent Fed. 514, 25 CCA 610 [aff 76 Fed. 757, the protection of exhibitors of foredition is entitled to a copyright on

and aff 174 U. S. 82, 19 SCt 606, 43eign literary, artistic, or musical his notes and additions, where they L. ed. 904); O'Neill v. General Film works at the Louisiana Purchase Excan be clearly separated from those Co., 152 NYS 599 [aff 171 App. Div. position, was held not to extend the of a previous edition. Lawrence v. 854, 157 NYS 1028); Langlois V. copyright protection to books exDana, 15 F. Cas. No. 8,136, 4 Cliff. 1. Vincent, 18 LCJur 160. See also hibited at the exposition which had See also Black v. Murray, 9 Sc. Sess. supra $$ 42-45.

been previously published in the Cas. 341.

“If an author permit his intel. United States. Encyclopædia Britan[b] Corrections and additions, lectual production to be published nica Co. V. American Newspaper Where a person simply makes cor- either serially or collectively, his Assoc., 142 Fed. 966, 74 CCA 228 (aft rections and additions to a work in right to a copyright is lost as effectu- 135 Fed. 841). which he had originally no interest, ally as the right of an inventor to a 72. Kipling V. Putnam, 120 Fed. he acquires a copyright in them, and patent upon an invention which he 631, 57 CCA 295, 65 LRA' 873; Larmay bring an action if they are deliberately abandons to the public- rowe-Loisette v. O'Loughlin, 88 Fed. pirated. Cary v. Longman, 1 East and this, too, irrespective of

his

896. And cases supra note 70.

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been enacted by express statutory provision. The or en bloc; in either case it is fatal.75 An uncopyrighting of a new edition of a work which has authorized piratical publication is no bar to a subbeen previously published, either with or without sequent copyright by the proprietor.76 copyright, protects only what is original in the new [93] c. Double Copyrighting. There is no such edition and does not confer any rights as to any thing as double copyrighting; matter that has once matter previously published.74 It is immaterial been copyrighted cannot be copyrighted again." whether the prior publication was made piecemeal

73. Act March 4, 1909 (35 U. S. Super. 485, 5 Que. Pr. 351. See also 345 [aff 229 Fed. 340, 143 CCA 460, St. at L. 1075 C 320 § 7). supra § 44.

but rev on other grounds 242 U. S. 74. Meccano V. Wagner, 234 Fed. 77. Caliga v. Inter Ocean News- 591, 37 SCt 232), an opera had been 912; Kipling v. Putnam, 120 Fed. 631, paper Co., 215 U. S. 182, 30 SCt 38, copyrighted as a dramatico-musical 57 CCA 295, 65 LRA 873; Lawrence v. 54 L. ed. 150 (aft 157 Fed. 186, 84 work. The words and music of a Dana, 14 F. Cas. No. 8,196, 4 Cliff. CCA 634] (holding that the same song forming part of the opera 1. principle applies as in the case of

copyrighted separately as a (a) Rule applied.—"This new copy- double patenting); West Pub. Co. v. musical composition. In a suit for right protected only what was orig- Edward Thompson Co., 176 Fed. 833, infringement by public performance inal in the 'Outward Bound' edition. 100 CCA 303 [mod 169 Fed. 833 ]; Kip- of such song, the district judge It did not operate to extend or en- ling v. Putnam, 120 Fed. 631, 57 CCA held that its separate copyright was large prior copyrights or

295, 65 LRA 873; Miffin v. Dutton, valid but limited the protection from the public domain the author's 112 Fed. 1004,50 CCA 661, 61 LRA of the dramatico-musical copyright works which, by his own act, he had 134 [aff 107 Fed. 708, and aff 196 to the measure afforded by the dedicated to the public. If, for in- U. S. 265, 23 SCt 771, 47 L. ed. 1043). musical copyright, the dramaticostance, the Messrs. Scribner should See New Fiction Pub. Co. v. Star Co., musical copyright on the song republish a new edition of Fielding's 220 Fed. 994, 995 (where Mayer, D. J., maining valid as thus limited. The works their copyright would cover said: "It is asserted that the March, district judge said: “This result no only that part of the edition which is 1914, issue of 'Snappy Stories' was doubt involves the abandonment of

It would not enable them to duly copyrighted in February, 1914; some rights, secured by the drahold a monopoly in Fielding's writ- but that fact is of no consequence matico-musical copyright, but that is ings. Any other publisher could pub- and adds nothing to plaintiff's case, because the plaintiffs wished a doufish Fielding's works with perfect in view of the previous copyright of ble protection. There can be no juspropriety." Kipling V. Putnam, 120 Goodman").

tice in preserving their dramatic Fed. 631, 634, 57 CCA 295, 65 LRA [a] Reason for rule.-"The con- rights at the expense of the public's 873.

tention in support of the copyright rights arising from taking out 75. Holmes v. Hurst, 174 U. S. 82, is substantially this: That the es- musical copyright. Had they wished 19 SCt 606, 43 L. ed. 904 [aff 80 Fed. tablished rule of the patent law to retain a complete dramatic monop514, 25 CCA 610 (aff 76 Fed. 757)]; against duplication of patents for the oly, they had it in their power to do Fraser v. Yack, 116 Fed. 285, 53 CCA same invention (Miller v. Eagle Mfg. As it is, that monopoly remains 563 (Barrie's "Little Minister"). Co., 151 U. S. 18 6, 14 sct 310, 38 L. to their complete protection, except

"We are quite unable to appreciate ed. 121; 12. Notes U. S. Rep. 485) is so far as its limitation is necessary the distinction between the publica- not applicable to copyrights, because to give full scope to the musical tion of a book and the publication of no express grant of monopoly issues copyright. For instance, if the perthe contents of such book, whether as in the case of patents, and that formance here had been anything besuch contents be published piecemeal duplications of registry for the same yond the least essentials to a musior en bloc.” Holmes v. Hurst, 174 subject-matter_are allowable, and so cal reproduction of the copyrighted U. S. 82, 89, 19 SCt 606, 43 L. ed. recognized in Black v. Henry G. Al- song, it would be protected; but it 904. len Co., 56 Fed. 764, 769. Neither of

This is believed to be [a] Reason for rule,"If, as con- these contentions impresses us as wholly unsound, and contrary to the tended by the plaintiff, the publica-tenable. The grant of monopoly is express provision of the statute (8 5) tion of a book be a wholly different conferred alike by statute in both which provides that the classification affair from the publication of the instances, upon due application, al- of the work (a mere administrative several chapters serially, then such though in respect of patents the feature) shall not impair the protecpublication of the parts might be methods differ in the needful dis

tion granted. The statute does not permitted to go on indefinitely be- crimination for patentability and in

authorize different classes of copyfore a copyright for the book is ap- the form of issue. The applicant rights. This was a case of attempted plied for, and such copyright used to for a copyright (section 4956, Rev. double copyrighting, and it should enjoin a sale of books which was $t. [3. U. S. Comp. St. 1901, p. 3407])

have been held that the second copyperfectly lawful when the books were deposits in the office of the Librarian right was void ab initio, and as no published. There is no fixed time the required matter, and record is notice of the original copyright was within which an author must apply there made. Upon compliance on the

given, that copyright was abandoned for a copyright, so that it be 'before part of an author with this require

to the song so separately pubpublication; and if the publication ment, the grant ensues, as of course,

lished (see infra $$ 194, 213, 219). of the parts serially be not a pub- under section 4952, Rev. St. [3 U. S.

On appeal, the circuit court of aplication of the book, a copyright Comp. St. 1901, p. 3406]. So the copy- peals, "assuming that a valid copymight be obtained after the several right is equally a grant, however

right was obtained” on the song as parts, whether published separately simple the method of acquiring, and a separate musical composition, said: or collectively, had been in general when once conferred there is neither

"The conclusion that there was circulation for years. Surely, this authority nor occasion for a second

infringement makes it unnecessary cannot be within the spirit of the grant to the author for the same

to inquire whether a subsequent act.". Holmes v. Hurst, 174 U. S. 82, production. Duplication is necessa

copyright can be obtained upon 89, 19 SCt 606, 43 L. ed. 904 [foll rily inoperative, as in the case of the portion of a previously copyrighted Mifflin v. R. H. White Co., 190 U. S. patent for invention, and the authori- work. We express no opinion on that 260, 23 SCt 769, 47 L. ed. 1040 (aff ties are harmonious in this view. question" (229 Fed. 340, 343, 143 CCA 112 Fed. 1004, 50 CCA 661, 61 LRA Mifflin v. Dutton, 112 Fed. 1004, 50 460). As to the effect on the first 134 [aff 107 Fed. 708])).

CCA 661, 61 LRA 134 (ar 190 U. S. copyright, the circuit court of ap[b] Rule applied.-That the copy-265, 23 sct 771, 47 L. ed. 1043]; Law- peals said: "This brings us to inright taken out by the author after rence v. Dana,' 14 F. Cas. No. 8,136, quire whether the complainants can the serial publication of his work in 4 Cliff. 1. For new matter only in

claim protection for this song under the Atlantic Monthly did not prevent new edition can another copyright their prior copyright of the drathe republication of so much of such be obtained. Id.; Drone on Copy- matico-musical composition from serial as had appeared in the maga- right, 146. In the case of Black v.

which it has been taken. The copyzine prior to December, 1859, and be- Henry G. Allen Co., supra, cited con- right of a dramatico-musical comfore any steps taken to obtain a tra, which arose in equity and in- position secures to the proprietor, as copyright, was settled by this court volved equitable considerations, the already stated, the exclusive right of in Holmes v. Hurst, 174 U. S. 82, 19 present inquiry and strict view of performance, and it makes no differSCt 606, 43 L. ed. 904, wherein we the proceedings for copyright were ence whether the performance is or held that the appearance of a work not passed upon, nor do we under- is not for profit. Did the complainin a magazine, by consent of the stand the opinion or ruling to rest ants, by publishing and copyrighting author, was such a publication as the rights of the complainant upon the song separately and apart from vitiated the copyright under section duplication of copyright. It goes the previously copyrighted dramafour of the copyright act of 1831. without saying that the author is tico-musical composition of which it 4 Stat. at L. 436, chap. 16." Mifflin bound only by such filing for

was a part, lose as to the part so v. R. H. White Co., 190 U. S. 260, 261, copyright

he authorizes or published the benefit of its copyright 23 SCt 769, 47 L. ed. 1040 [aff 112 adopts." Caliga v. Inter-Ocean News- as a dramatico-musical composition? Fed. 1004, 50 CCA 661, 61 LRA 134 paper Co., 157 Fed. 186, 189, 84 CCA There can be no doubt that they have (aff 107 Fed. 708)).

634 [aff 215 U. S. 182, 30 sct 38, 54 lost that right as to the republished Serial and book publication see L. ed. 150).

part, for the reason that in repubinfra $ 219.

[b] Concurrent musical and dra- lishing they failed to state that the 76. Anglo-Canadian Music Pub- matico-musical copyrights.-In Her- comic opera from which the song lishers' Assoc. v. Dupuis, 27 Que. | bert v. Shanley Co. 222 Fed. 344,

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The second attempted copyright is wholly void.T8 Originality, not novelty, is the requirement of the Thus where a work has been published serially in a statute,54 in which respect copyrights differ sharply periodical, it cannot be copyrighted subsequently in from patents.85 Independent translations of the book form," and vice versa. But, in the case of same work will necessarily be very similar, but each double copyrighting, it goes without saying that the is entitled to copyright. So copyright may be seauthor is bound only by such filing for copyright cured on each of several dramatizations of the same as he authorizes or adopts. These rules are now story.87 Independent photographs of the same fixed by declaratory statute.

model may each be copyrighted.88 [ 0 94] d. Independent Production of Similar or [$ 95] e. Compilations. To come within the proIdentical Result. The mere fact that two or more tection of the copyright statutes, a work need not works on the same subject are similar to one an- consist of new or original matter. There may be a other, or even identical, is not sufficient of itself to valid copyright for the plan of a book as connected deprive either of the protection of the statute. Both with the selection, arrangement, and combination of may be original. Each, if the result of independent the matter, although all the materials used and its labor and research and not a copy or an evasive subject are common to all writers. The mere fact imitation of the other, is entitled to be copyrighted.83 that a work bears evidence that it was derived from We have failed to find any such an- grounds 176 Fed. 833, 100 CCA 303]; , write on the same subject, treat it nouncement printed on the music Banks v. McDivitt, 2 F. Cas. No. 961, similarly, and use the same common sheets of the song. In its absence 13 Blatchf. 163; Blunt V. Patten, 3 materials in like manner and for one the complainants cannot claim the F. Cas. No. 1,579, 2_Paine 393; Bul- purpose. Their productions may conbenefit of the prior copyright. linger y. Mackey, 4 F. Cas. No. 2,127,tain the same thoughts, sentiments, Whether, if they had inserted a no- 15 Blatchf. 550; Farmer V. Calvert ideas; they may be identical. Such tice of the previous copyright, they Lith., etc., Co., '8 F. Cas. No. 4,651, resemblance or identity is material could have retained the advantages 1 Flipp. 228; Lawrence v. Cupples, only as showing whether there has of it as to the republished song, we 15 F. Cas. No. 8,135; Reed v. Carusi, been unlawful copying. In

many need not now consider." On certio- 20 F. Cas. No. 11,642, Taney 72; cases, the natural or necessary rerari, the supreme court, in reversing

Webb Powers, 29 F. Cas. No. semblance between two productions, this decree on the question of in

17,323, 2 Woodb. & M. 497; Morris v. which are the result of independent fringement said that it was not nec

Wright, L. R. 5 Ch. 279; Pike labor, will amount to substantial essary to discuss the holding of the Nicholas, L. R. 5 Ch. 251, 7 'ERC 108; identity. Thus, the differences will district court "that by the separate Cox v. Land, etc., Journal Co., L. R. be often slight, and sometimes impublication the plaintiffs' rights were

9 Eq. 324; Morris v. Ashbee, L. R. material, between two descriptions of limited to those conferred by the 7 Eq. 34; Kelly V. Morris, L. R. 1 a common object; two compilations separate copyright" (242 U. s. 591, Eq. 697, 1 ERC 102; Lewis v. Fullar- of like materials; two maps, charts, 594, 37 SCt 232).

ton, 2 Beav. 6, 17 EngCh 6, 48 Re- or road books of a common region; 78. Caliga v. Inter Ocean News. | print 1080; Roworth v. Wilkes, 1 two directories of city; two paper Co., 215 U. S. 182, 30 SCt 38,

Campb. 94; Murray v. Bogue, 1 Drew.photographs of the same scene; two 54 L. ed. 150 [aff 157 Fed. 186, 84 CC 353, 61 Reprint 487; Jefferys v. engravings of the

painting. A 634).

Boosey, 4 H. L. Cas. 815, 10 Reprint But, notwithstanding their 'likeness (a) Reason for rule-To permit

681; McNeill v. Williams, 11 Jur. 344; to one another, any number of prosuccessive copyrights would render Baily, v. Taylor, 1 Russ. & M. 73, 5 ductions of the same kind may be possible an extension of the statu

Engčh 73, 39 Reprint 28, Taml. 295, original within the meaning of the tory period through which the copy

12 EngCh 295, 48 Reprint 118; Bar- law; and no conditions as to origright runs. Mifflin V. Dutton,

field v. Nicholson, 2 Sim. & St. 1, 1 inality are imposed on the makers,

112 Fed. 1004, 50 CCA 661, 61 LRA 134 EngCh 1, 57 Reprint 245; Longman

except that each shall be the pro(aff 190 U. S. 265, 23 SCt 771, 47 L.

v. Winchester, 16 Ves. Jr. 269, 33 ducer of that for which he claims ed. 10431.

Reprint 987; Matthewson v. Stock-protection.". Drone Copyright p 205 [b] Rule applied to painting.–The dale, 13 Ves. Jr. 270, 33 Reprint 103; (quot Chautauqua School of Nursing

V. National School of Nursing, 238 attempted duplication of an existing Spiers v. Brown, 6 Wkly. Rep. 352. copyright in a painting by depositing

[a] Rale applied to song-A per

Fed. 151, 153, 151 CCA 227 (rev 211 the same photograph of the same son will be held to be the author of Fed. 1014)).

85. a song, although there is evidence

Beullac painting under a new title, and with

Simard, 39 Que. but a slight change in description, is that his song is similar to a song Super. 97 [aff 39 Que. Super. 517).

See Patents (30 Cyc 828). void, and cannot be made the basis previously published, if the parts of a suit for infringement. Caliga

that seem to be alike are not contin- [a] Copyrights and patents conv. Inter Ocean Newspaper Co., 215

uous enough nor sufficiently extended trasted.-"Property in copyright is

to indicate that he was guided or different from that, U. S. 182, 30 SCt 38, 54 L. ed. 150.

either in aided by the former song, and not- patented invention, 79. Mifflin v. Dutton, 190 U. S.

or in a trade withstanding the fact that he was mark, In order that a valid patent 265, 23 SCt 771, 47 L. ed. 1043 (aff 112

very young at the time he says the of invention can exist, there must Fed. 1004, 50 CCA 661, 61 LRA 134];

music was formed in his mind, espe- have something new and useful covMifflin v. R. H. White Co., 190 U. S.

cially since he had the music written ered by it, and a successful denial 260, 23 SCt 769, 47 L. ed. 1040 (aft 112

out as soon as he was old enough to of the newness and usefulness of an Fed. 1004, 50 CCA 661, 61 LŘA 134

do so intelligently, and before any invention would involve the deter(aff 107 Fed. 708)]; Holmes v. Hurst,

other person did so. Blume v. Spear, mination that the patent was void. 174 U, S. 82, 19 SCt 606, 43 L. ed. 904 30 Fed. 629.

So also in a trade mark. That is [aft 80 Fed. 514, 25 CCA 610 (aff 76

Infringement in such cases

attached to goods and must be someFed. 757)); West Pub. Co. v. Edward infra § 278.

thing which has not existed before, Thompson Co., 176 Fed. 833, 100 CCA

84. Chautauqua School of Nursing nor can it be anything so similar to 303.

V. National School of Nursing, 238 something which has existed before, (a) Bound volumes and advance Fed. 151, 151 CCA 227 (rev 211 Fed.

as to be liable to be mistaken for it. parts.-It is neither necessary, 1014).

The copyright act, however, does not possible to copyright a bound volume if its contents have previously ap

(aj “Works Alike May be Orig- require that the thing copyrighted

should, either be new, or useful. It, peared in serial numbers which have inal.-It is not essential that any production, to be original or

perhaps, does require that there must been copyrighted singly. West Pub.

within the meaning of the law of be some labor or some judgment emCo. v. Edward Thompson Co., 176 Fed. copyright, shall be different from an

ployed in connection with the prep833, 100 CCA 303. other. Whether the composition for

aration of the thing copyrighted. 80. Mifflin v. Dutton, 190 U, S. 265, which copyright is claimed is the But it is perfectly clear that the 23 SCt 769, 47 L. ed. 1040 (aff 112

same as or different from, whether labor and the skill requisite to make Fed. 1004, 50 CCA 661 (aff 107 Fed. it is like or unlike, an existing one,

a model in bas-relief from a photo708)); Millin v. R. H. White Co., 190

are matters of which the law takes graph, is more than ample to be the U. S. 260, 23 SCt 769, 47 L. ed. 1040

no cognizance, except to determine foundation for a good copyright." (aff 112 Fed. 1004, 50 CCA 661, 61 whether the production is the result

Beullac v. Simard, 39 Que. Super. LRA 134 (aff 107 Fed. 708)).

of independent labor or of copying. 97, 98 [aff 39 Que. Super. 517). 81. Caliga v. Inter-Ocean NewsThere cannot be exclusive property

86. Translations as subjects of paper Co., 157 Fed. 186, 84 CCA 634

in a general subject, or in the method copyright see infra § 127. (aft 215 U. S. 182, 30 SCt 38, 54 L. ed. of treating it; nor in the mere plan 87. Dramatizations as subjects of 150).

of a work; nor in common materials, copyright see infra § 109. 82. Act March 4, 1909 (35 U. S. or the manner or purpose for which 88. Gross V. Seligman, 212 Fed. St. at L. 1075 c 320 $ 6).

they are used. The rights of any 930, 129 CCA 450. 83. Chautauqua School of Nurs- person are restricted to his own Photographs as subjects of copying v. National School of Nursing, individual production. There is noth- right see infra § 118. 238 Fed. 151, 151 CCA 227 [rev 211 ing in the letter or the spirit of the 89. Bleistein V. Donaldson Lith. Fed. 1014); Hein v. Harris, 175 Fed. law of copyright to prevent or to Co., 188 U. S. 238, 23 Sct 298, 47 L. 875 [aff 183 Fed. 107, 105 CCA 399); discourage any number of persons ed. 460 (rev 104 Fed 993, 44 CCA West Pub. Co. v. Edward Thompson from honestly laboring in the same 296]: Chautauqua School of Nursing Co., 169 Fed. 833 [mod on other field. Two

authors may v. National School of Nursing, 211

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