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a former publication does not necessarily prevent its being considered an original work; the author may nevertheless, by selection and modification, arrangement and combination, produce a new work.90 But, to entitle an author to a copyright in the selection, plan, arrangement, and combination of his materials, the work in these respects must be rew and original.91 The new copyright will extend to, and protect, only what is new and original; it will not secure or extend copyright in the old ma

terials used in the new work.92 These rules have become codified by express enactment in the copyright statute,93 and compilations are expressly named as the subject of copyright.”

Rules applied. The following have been held proper subjects of copyright: itineraries, road and guide books ;95 abridged information of train service in connection with circular tours of a particular locality;96 a list of railway stations ;97 a book of chronology;98 dictionaries;99 a topographical diction



Fed. 1014 (rev on other grounds 238 , partly original may be the subject, (1894]. A. C. 335.
Fed. 151, 151 CCA 227]; Woodman v. of copyright. Lewis v. Fullarton, 2 [a] Reason for

rule.-(1) "A Lydiard-Peterson Co., 192 Fed. 67 Beav. 6, 17 EngCh 6, 48 Reprint 1080. mere copy or reprint of common (aft 204 Fed. 921, 123 CCA 243 (reh 90. Meccano v. Wagner, 234 Fed. materials, without novelty or value den 205 Fed. 900, 126 CCA 434)]; 912; Woodman v. Lydiard-Peterson in their arrangement or combination, West Pub. Co. v. Edward Thompson Co., 192 Fed. 67 saff 204 Fed. 921, 123 is not entitled to copyright as a Co., 169 Fed. 833 (mod on other CCA 243 (reh den 205 Fed. 900, 126 compilation; for in such case there grounds 176 Fed. 833, 100 CCA 303]; CCA 434)); West Pub. Co. v.


is nothing to represent authorship Egbert v. Greenberg, 100 Fed. 447, ward Thompson Co., 176 Fed. 833, on the part of the compiler." Drone 448 ("official form chart"); American | 100 CCA 303; Boucicault v. Fox, 3 F. Copyright p 156. (2) Authorship Trotting Register Assoc. v. Gocher, 70 | Cas. No. 1,691, 5 Blatchf. 87; Black- lies in new matter or new arrangeFed. 237; Stover_v. Lathrop, 33 Fed. lock v. Pearson, Ltd., [1915] 2 Ch. ment. Barfield v. Nicholson, 2 Sim. 348; Hanson v. Jaccard Jewelry Co., 376.

& St. 1, 1 EngCh 1, 57 Reprint 245. 32 Fed. 202; Atwill v. Ferrett, 2 F. [a] Compilation from Uncopy- [b] Collection of receipts for cook. Cas. No. 640, 2 Blatchf. 39; Bouci- righted works.-(1) A compilation ing(1) A mere collection of recault v. Fox, 3 F. Cas. No. 1,691, 5 comprising a choice of articles taken ceipts for cooking cannot, it has been Blatchf. 87; Bullinger v. Mackey, 4 from books on which the copyright said, be the subject of copyright. as F. Cas No. 2,127, 15 Blatchf. 550; has expired, together with its no- it requires no mental labor. RunEmerson v. Davies, 8 F. Cas. No. menclature, may be the subject of dell v. Murray, Jac. 311, 4 EngCh 4,436, 3 Story 768; Greene v. Bishop, copyright. Beauchemin v. Cadieux, 311, 37 Reprint 868. (2) But Mr. 10 F. Cas. No. 5,763, 1 Cliff. 186; 10 Que. Q. B. 255. (2) Complain- Kerr, in his treatise on Injunctions, Gray v. Russell, 10 F. Cas. No. 5,728, ant's copyright on a manual for use says that the authorities do not sup1 Story 11; Lawrence v. Dana, 15 F. in connection with a mechanical toy port this dictum. Kerr Inj. p 361. Cas. No. 8,736, 4 Cliff. 1; Story v. is not invalid because of a previous (3) And it is clearly not the law. Holcombe, 23 F. Cas. No. 13,497, 4 uncopyrighted work for use in con- 92. Meccano v. Wagner, 234 Fed. McLean 306; Banker v. Caldwell, 3 nection with such toys, where the 912; Hoffman v. Le Traunik, 209 Fed. Minn. 94; Leslie v. Young, (1894) A. uncopyrighted work did not contain 375; West Pub. Co. Edward C. 335; Morris v. Wright, L. R. 5 Ch. all of the matter in the copyrighted Thompson Co., 169 Fed. 833 [mod 279; Exchange Tel. Co., Ltd. v. Greg- book, Meccano v. Wagner, 234 Fed. on other grounds 176 Fed. 833, 100 ory, (1896) 1 Q B. 147; Lamb v. 912.

CCA 303]. See also infra § 272. Evans, [1893) 1 Ch. 218; Grace v. [b] A book which consists of a 93. Act March 4, 1909 (35 U. S. Newman, L. R. 19 Eq. 623, _7 ERC specification of the conditions, at a St. at L. 1075 C 320 § 6) (which pro86; Hogg v. Scott, L. R. 18 Eq. 444; given moment, of a constantly vides: "That compilations

or Mack v. Petter, L. R. 14 Eq. 431; changing subject matter,

abridgement, adaptations, arrangeScott v. Stamford, L. R. 3 Eq. 718; ample, a monthly railway guide, is a ments, dramatizations, translations, Kelly V. Morris, L. R. 1 Eq. 697, 7 new work, and entitled to copyright, or other versions of works in the ERC 102; Lewis v. Fullerton, 2 Beav. even though some of the particulars | public domain, or of copyrighted 6, 17 EngCh6, 48 Reprint 1080; given may not have been altered from works when produced with the conSweet v. Benning, 16 C. B. 459, 81 what they were at some earlier date. sent of the proprietor of the copyECL 459, 139 Reprint 838; Trusler Blacklock & Co., Ltd. V. Pearson, right in such works, or works repubV. Murray [cit Cary V. Longman, 1 Ltd., (1915) 2 Ch. 376.

lished with new matter, shall be reEast 358, 362, 102 Reprint 138, 7 ERC [c] Test of originality.--"The garded as new works subject to 78); Cary. v. Longman, supra; Nor- question is not, whether the materi- copyright under the provisions of ton V Nicholls, 1 E. & E. 761, 102 als which are used are entirely new, this Act; but the publication of any ECL 761, 120 Reprint 1095; Harrison and have never been used before; or such new works shall not affect the v. Taylor, 4 H. & N. 815, 157 Reprint even that they have never been used force or validity of any subsisting 1064; Rundell v. Murray, Jac. 311, 4 before for the same purpose. The copyright upon the matter employed EngĆh 311, 37 Reprint 868; Reg. v. true question is, whether the same or any part thereof, or be construed Firmin, 15 J. P. 740 (cit Harrison v. plan, arrangement and combination to imply an exclusive right to such Taylor, 3 H. & N. 301, 304, 157 Re- of materials have been used before use of the original works, or to seprint 485]; Jarrold v. Houlston, 3 for the same purpose or for any

cure or extend copyright in such Kay & J. 708, 69 Reprint 1294; Mul- other purpose. If they have not, original works"). loney v. Stevens, 10 L. T. Rep. N. S. then the plaintiff is entitled to

94. Act March 4, 1909 (35 U. S. 190; Mawman v. Tegg, 2 Russ. 385, copyright, although he may have St. at L. 1075 C 320 8 5). 3 EngCh 385, 38 Reprint 380; Ager gathered hints for his plan and ar. 95. Murray v. Bogue, 1 Drew. 353, V. Collingridge, 2 T. L. R. 291; Wil- rangement, or parts of his plan and 61 Reprint 487; Cary v. Longman, 1 kins v. Aikin, 17 Ves. Jr. 422, 34 Re- arrangement, from existing and East 358, 102 Reprint 138, 7 ERC print 163; Longman v. Winchester, known sources. He may have bor-78; Cary v. Faden, 5 Ves. Jr. 24, 31 16 Ves. Jr. 269, 33 Reprint 987; Mat- rowed much of his materials from Reprint 453. thewson v. Stockdale, 12 Ves. Jr. others, but if they are combined in 96. Leslie v. Young, (1894) A. C. 270, 33 Reprint 103; Hogg v. Kirby, a different manner from what was

335 (compilation made from pub8 Ves. Jr. 215, 32 Reprint 336; Cary in use before, and a fortiori, if his lished railway time-tables). v. Faden, 5 Ves. Jr. 24, 31 Reprint plan and arrangement are real im- (a Railway guide-The mere 453; Kelly V. Hooper, 1 Y. & Coll. provements upon the existing modes, publication in a particular order of 197, 20 EngCh 197, 62 Reprint 852; he is entitled to a copy-right in the time-tables which are to be found in Beauchemin v. Cabieux, 10 Que. Q. B. book embodying such improvement. the publications of the various rail255.

It is true, that he does not thereby way companies is not sufficient to "Copyright has been extended acquire the right to appropriate to give rise to a claim to copyright. so that it now includes books that himself the materials which were The right may, however, exist in a old guild of authors would have dis- common to all persons before, so as compilation of information

to dained; catalogues, mathematical to exclude those persons from a fu- coach routes, ferries, and steamers, tables, statistics, designs, guide- ture use of such materials; but then published in the form of an abstract books, directories, and other works they have no right to use such ma- for the use of a particular locality. of similar character. Nothing, it terials with his improvements super

Leslie v. Young, [1894) A. C. 335. would seem, evincing, in its make-up, added, whether they consist in plan, 97. Blacklock v. Pearson, Ltd., that there has been underneath it, in arrangement or illustrations, or com- [1915] 2 Ch. 376. some substantial way, the mind' of binations; for these are strictly his 98. Trusler v. Murray (cit Cary v. a creator or originator, is now ex- Own." Emerson v. Davies, 8 F. Cas. Longman, 1 East 358, 362, 102 Recluded." National Tel. News Co. v. No. 4,436, 3 Story 768, 778.

print 138, 7 ERC 78). Western Union Tel. Co., 119 Fed. 294, 91. Hoffman V. Le Traunik, 209 99. Bleistein v. Donaldson Lith. 297, 56 CCA 198, 60 LRA 805.

Fed. 375; Mutual Adv. Co. v. Refo, 76 Co., 188 U, S. 238, 23 Sct 298, 47 L. (a) Arrangements of questions Fed. 961; Bullinger V. Mackey, 4 F. ed. 460 (rev 104 Fed. 993, 44 CCA and answers, however simple in Cas. No. 2,127, 15 Blatchf. 550; Em- 296) (dictum); Barfield v. Nicholson, themselves, and on subjects however erson v. Davies, 8 F. Cas. No. 4,436. 2 Sim. & St. '1, 1 EngCh 1, 57 Recommon, may be the subject of copy- 3 Story 768; Jollie v. Jaques, 13 F. print 245; Spiers v. Brown, 6 Wkly. right. Jarrold v. Houlston, 3 Kay & Cas. No. 7.437, 1 Blatchf. 618; Story Rep. 352; Beauchemin v. Cadieux, 10 J. 708, 69 Reprint 1294.

V. Holcombe, 23 F. Cas. No. 13,497, Que. K. B. 255, 22 Que. Super. 482 [b] A work partly compiled and 4 McLean 306; Leslie Young, 1 [aff 31 Can. S. C. 370).












ary;' a book of words for use in telegraphy;" a to show readily the date and order of historic directory; trades directory headings; an East India calendar;5 a court calendar;biographical notes ;? [$ 96] f. Abridgments. A bona fide abridgment a trade® or shipping list;' a book of credit ratings;10 is regarded as a new and original work entitled to maps and charts;11 catalogues ;12 mathematical copyright,29 unless it is itself a piracy;39 and this tables ;13 a book of statistics;14 a compilation of stock rule has been expressly declared by statute 31 exchange quotations;15 abstracts of titles to lands;16 [0 97] g. Index or Concordance. An index to a list of hounds;17 a list of race horses ;18 a list of other works is itself a proper subject of copyright.32

33 bills of sale, deeds, etc.;19 statutory forms;20 a com- The same is true of a concordance.3 pilation of the statutes of a state;21 a digest of [98] 3. Literary or Artistic Merit. Copyrights legal decisions;22 a spelling book;23 a book of ele- being granted under the constitutional grant of mentary lessons in arithmetic,24 science,25 or Eng. power “to promote the progress of science and the lish grammar;28 additions, corrections, or original

useful arts,

*° 34 it has frequently been said or denotes to an old work; 27 and a compilation made cided that the work copyrighted must be useful,35 from voluminous public documents so arra

rranged as and must possess literary or artistic merit,38 in order 1. Kelly v. Morris, L. R. 1 Eq. ble of copyright. Weatherby v. In- 30. See supra § 91 text and note 697, 7 ERC 192; Lewis v. Fullarton, ternational Horse Agency and Ex- 63. 2 Beav. 6, 17 EngCh 6, 48 Reprint change, Ltd., (1910) 2 Ch. 297.

Abridgment an infringement 1080.

[b] An "oficial form chart," infra 8 304. Ager v. Peninsular, etc., Steam which consists of list of

31. Act March 4, 1909 (35 U. S. Nav. Co., 26 Ch. D. 637.

horses, and a compilation of facts St. at L. 1075 C 320 § 6). 3. See infra 8 130.

and statistics relating to

the per

32. Banker v. Caldwell, 3 Minn. Infringement of directories see in- formances of such horses the 94; Blacklock v. Pearson, Ltd., (1915) fra $ 308.

track, is a proper subject of protec-2 Ch. 376. 4. Lamb v. Evans. (18921 3 Ch. tion by copyright. Egbert v. Green- "Indexes to works may be copy462 [app dism (1893] "i Ch. 218) berg, 100 Fed. 447, 448.

righted. An index to the Constitu(classified trade directory).

19. Cate v. Devon, etc., Constitution of the United States, or the Holy 5. Matthewson v. Stockdale, 12 tional Newspaper Co., 40 Ch. D. 500; Bible, may be a very valuable conVes, Jr. 270, 33 Reprint 103.

Trade Auxiliary Co. v. Middlesbor- tribution to the number of literary "There is, however, no contention ough, etc., Tradesmen's Protection productions. Certainly any one who between these parties for a copyright Assoc., 40 Ch. D. 425.

has examined Cruden's Concordance in an East India Calendar; which (a! Reason for rule.-"These lists of the Bible would never deny to certainly is not a subject of copyright. But, if a man, from his situ- tions; that is to say, that the author are in some sense original publica- him the fame, of having conferred

upon the world a work of inestimaation having access to the repositor- of them, or the mpose of them ble value, yet it is but an index after ies in the India House, has by con- as he is called in sect. 18, has be- all.", Banker v. Caldwell, 3 Minn. 94. siderable expense and labour pro- stowed some brainwork upon them,

[a] Rule applied Under the cured with correctness all the names and that they are not a mere collec- present Copyright Act, copyright and appointments on the Indian Es

tion of copies of public documents. subsists in every original literary tablishment, he has a copyright in

If they had been such mere collec- work.' which term includes compilathat individual work; which has cost tions there might have been

tions; so that I suppose the list of him considerable expence and labour; question, but there has been

names which forms or is contained and employed him at a loss in other abridgment and mental work and an

in the index to Bradshaw is entitled respects; though there can


amount of labor which entitles the to copyright as much as any other copyright in an India Calendar, genauthor of the work or the composer

part of the publication.” Blacklock erally." Matthewson v. Stockdale, 12 of it-for I take those two words to

v. Pearson, Ltd., (1915) 2 Ch. 376, Ves, Jr, 270, 276, 33 Reprint 103. mean the same thing-to a copy

381. 6. Longman

V. Winchester, 16 right." Trade Auxiliary Co. v. Mid- Index as an infringement see inVes. Jr. 269, 33 Reprint 987. dlesborough, etc., Tradesmen's Pro

fra $ 306. 7. James Nisbet & Co., Ltd.

33. tective Assoc., 40 Ch. D 425, 435.

Banker v. Caldwell, 3 Minn. Golf Agency, 23 T. L. R. 370.

20. See infra § 138.

94 (quoted supra note 32). 8. Cornish v. Upton, 4 L. T. Rep. 21.

34. See infra § 135.

See supra $$ 71, 85. N. S. 862.

35. 22. 9.

Barnes v. Miner, 182 Fed. 480; Maclean v. Moody, 20 Dec. Ct.

See infra § 136.

and cases infra this section. See

23. Sess. (2d ser) 1154.

Lennie v. Pillans, 5 Dec. Ct.

also supra § 85. 10. See infra § 129.

Sess. (2d ser) 416. 11.


[a] Stage
See infra $$ 112, 113.

Emerson v. Davies, 8 F. Cas. thing put on the stage or intended 12. See infra 140. No. 4,436, 3 Story 768.

for the stage is not the subject of a 13. McNeill v. Williams, 11 Jur.

25. Jarrold v. Houlston, 3 Kay &

copyright. It may be amusing and 344; Baily v. Taylor, 1 Russ. & M. J. 708, 69 Reprint 1294; Jarrold v.

entertaining to many, but this fact 73, 5 EngCh 73, 39 Reprint 28; King Heywood, 18 Wkly. Rep. 279.

does not show it to be a production v.' Reed [cit Hogg V. Kirby, 8 Ves.

26. Greene v. Bishop, 10 F. Cas. tending to promote the progress of Jr. 215, 223, 32 Reprint 336]. No._5,763, 1 Cliff. 186.

science and useful arts,' and, if it 14. National Tel. News Co.

27. Gray v. Russell, 10 F. Cas. No. V.

lacks those elements in a substanWestern Union Tel. Co., 119 Fed. 5,728, 1 Story 11; Lawrence v. Dana,

tial degree, it is not within the pur294, 56 CCA 198, 60 LRA 805; Scott 14 F. Cas. No. 8,136, 4 Cliff. 1; Mason

view of the statute, which is not V. Stamford, L. R. 3 Eq. 718; Mac, v. Murray, Dick. 536, 21 Reprint 378

supposed to transcend the Constitulean v. Moody, 2 Dec. Ĉt. Sess. (2d| (Gray's Poems); Cary v. Longman, 1

tion of the United States." Barnes ser) 1154; Walford v. Johnston, 9 East 358, 102 Reprint 138; Moffat v. v. Miner, 122 Fed. 480, 493. Dec. Ct. Sess. (2d ser) 1160.

Gill, 86 L. T. Rep. N. S. 465 [rev 84 36. Barnes v. Miner, 122 Fed. 480; “There are numerous cases which L. T. Rep. N. S. 452) (annotated J. L. Mott Iron Works V. Clow, 82 hold that any compilation or any


Black of Shakespeare);

Fed. 316, 27 CCA 250; Amberg File, table of statistics which are the re- Murray, 9 Macph. S. L. 341; Hotten

etc., Co. v. Smith, 82 Fed. 314, 27 sult of the author's industry, and V. Newsagents' Co., 1 Seton 215;

CCA 246 (aff 78 Fed. 479); Lamb which are gathered at his expense, Tonson v. Walker, 3 Swanst. 672,

Grand Rapids School Furniture cannot be bodily used by an in

36 Reprint 1017 [cit Millar v. Taylor, Co., 39 Fed. 474. fringer." Egbert V. Greenberg, 100 4 Burr. 2303, 2325, 98 Reprint 201; a] Indexed letter file.-An inFed. 447, 450 [quot American Trot- Cary v. Longman, 1 East 358, 360, dexed letter file is not copyrightable ting Register Assoc. V. Gocher, 70 102 Reprint 138] ("Paradise Lost" because the contrivance is not a Fed. 237).

with Dr. Newton's notes); Hutchins book. Amberg File, etc., Co. v. Shea, 15. See infra § 128. v. Sheard, [1881] W. N. 20.

78 Fed. 479 (aff 82 Fed. 314, 27 CCA 16. See infra § 131.

28. Hanson v. Jaccard Jewelry | 246]; 17. Cox v. Land, etc., Journal Co., Co., 32 Fed. 202.

Ihl Mode of ruling a book.-CopyL. R. 9 Eq. 324.

29. Gyles v. Wilcox, 2 Atk. 141, right was claimed in a cricket scor18. Egbert v. Greenberg, 100 Fed. 26 Reprint 489, 7 ERC 95; Bell v. ing sheet. Vice-Chancellor Malins 447, 448 ("official form chart"); Walker, 1 Bro. Ch. 451, 28 Reprint held that it was not a fit subject of American Trotting Register Assoc. 1235; D'Almaine v. Boosey, 4 L. J. copyright, partly because it was not V. Gocher, 70 Fed. 237 (list of trot- Exch. 21: Tonson V. Walker, 3 new, but also because "to say that a ters and pacers with record of 2.30 Swanst. 672, 36 Reprint 1017.

particular mode of ruling a book or better); Weatherby v. Interna- "An abridged edition of a book is constituted an object for copytional Horse Agency

and Ex- protected by a copyright independ. right is absurd.” Page v. Wisden. change, Ltd., [1910) 2 Ch. 297 ent of that in the original work, if 20 L. T. Rep. N. S. 435, 436. See also ("General Stud Book," giving list of the substance of the original work is Baker v. Selden, 101 U. S. 99, 25 L. brood mares at the stud).

expressed in language substantially ed. 841 (system of book-keeping). [a] A Ust of brood mares with different, so that the abrigment is (c) Railway ticket(1) Under the their sires or a list of stallions with the result of intellectual effort, and copyright Act of the Dominion of daughters at the stud is not such a not mere copying." 8 Halsbury L. Canada it has been held that a railbare list of names as to be incapa- 1 Eng. p 146.

way ticket is not a proper subject of







to be a proper subject of copyright;37 and it has purely commercial or business character of a comalso been said that copyrights are for the encour- position or a compilation does not oust the right to agement of learning and not for the encouragement protection of copyright, if time, labor, and experiof mere industry unconnected with learning and the ence have been devoted to its production." Defendsciences.38 On the other hand, high authority has ant's desire to copy has been deemed to show the denied the existence of any requirement of literary value and utility of the work copied. “2 or artistic excellence in a work otherwise within [099] 4. Morality and Legality. On the ground the terms of the statute ;39 and, in any event, a very that the law will not lend its aid to protect the slight degree of literary or artistic merit, or any author or the owner of an unlawful production, substantial contribution to useful knowledge or to no copyright can be acquired in a work which is of the arts, is sufficient to support a copyright.40 The an indecent or immoral character,44 or which is copyright. In the course of deliv- , work of great literary merit. The artistic merit. Britain v. Hanks, 86 ering the opinion the court inquires: statute does not make this a neces- L. T. Rep. N. S. 765. "What is the literary property to be sary element of a legal copyright; (d) Topical song:-A topical song protected in this ticket?" Griffin v. and it is well known there are works was held to possess sufficient literary Kingston, etc., R. Co., 17 Ont. 660. of great practical utility, having no merit and originality to be the sub666. (2) But in the later case of

pretension to literary merit, which ject of copyright. Henderson Church v. Linton, 25 Ont. 131, 134, are yet within, not only the words, Tompkins, 60 Fed. 758. Chancellor Boyd says:

"I do not go but the scope and design of the stat- (el Pamphlet descriptive of mode with the limitation suggested


ute." Drury v. Ewing, 7 F. Cas. No. of advertising -A pamphlet deseribGriffin v. Kingston, etc., R. Co., su- 4,095, 1 Bond 540, 548.

ing a new method of using coupons pra, that the legislation is to be ap- 40. Bleistein Donaldson Lith. for the purpose of advertising was plied, having regard to literary merit Co., 188 U. S. 230, 250, 23 sgt 298, held to be a proper subject of copy. as an ingredient.”

47 L. ed. 460 (rev 104 Fed. 993, 44 right. Mutual Adv. Co. v. Refo, 76 37. Advertisements, price Usts, CCA 296); Higgins v. Keuffel, 140 Fed. 961. catalogues, etc., as subjects of copy- U. S. 428, 11 SCt 731, 35 L. ed. 470; [f] Circus posters are copyrightright see infra § 140.

Baker v. Selden, 101 U. S. 99. 25 L. able.-Bleistein v. Donaldson Lith. Labels as subject of copyright see ed. 841; Stecher Lith. Co. v. Dunston Co., 188 U. S. 233, 23 Sct 298, 47 L. infra § 141.

Lith. Co., 233 Fed. 601; Atlas Mfg. ed. 460 (rev 104 Fed. 993, 44 CCA Market quotations and news items Co. v. Street, 204 Fed. 398, 122 CCA 296 (aff 98 Fed. 608)). see infra $ 128.

568, 47 LRANS 1002; National Cloak, (8) Pictorial illustrations.--"It News and newspapers as subjects etc., Co. v. Kaufman, 189 Fed. 215, would be a dangerous undertaking of copyright see infra § 102. As sub- 219; Hein v. Harris, 175 Fed. 875 for persons trained only to the law ject of common-law property see su- (aff 183 Fed. 107, 105 CCA 3991; Na- to constitute themselves final judges pra § 21.

tional Tel. News Co.

Western of the worth of pictorial illustra38. Clayton v. Stone, 5 F. Cas. Union Tel. Co., 119 Fed. 294, 297, 60 tions, outside of the narrowest and No. 2,872, 2 Paine 382 (quot Barnes LRA 805; J. L. Mott Iron Works v. most obvious limits. At the one exv. Miner, 122 Fed. 480]; Griffin Clow, 82 Fed. 316, 27 CCA 250 [aft treme some works of genius would Kingston, etc., R. Co., 17 Ont. 660, 72 Fed. 168); Henderson v. Tompkins. be sure to miss appreciation. Their 665.

60 Fed. 758; Daly v. Webster, 56 Fed. very novelty would make them repul. “'Thus we see that the object and 483, 4 CCA 10 Tapp dism 163 U. Ş. sive until the public had learned the principle underlying the legislation 155, 16 SCt 962, 41 L. ed. 112); Lamb new language in which their author and the judicial interpretation of the v. Grand Rapids School Furniture spoke. It may be more than doubted, legislation from Queen Anne's time Co., 39 Fed. 474; Schumacher for instance, whether the etchings of to the present is to protect, advance, Schwencke, 25 Fed. 466, 23 Blatchf. Goya or the paintings of Manet and encourage learning and art; and 373; Yuengling v. Schile, 12 Fed. 97, would have been sure of protection not, unless it be casually and indi- 20 Blatchf. 452; Ehret v. Pierce, 10 when seen for the first time. At the rectly, to promote or assist progress T'ed. 553, 18 Blatchf. 302; Daly v. other end, copyright would be denied in mechanical or industrial appli- Palmer, 6 F. Cas. No. 3,552, 6 Blatchf. to pictures which appealed to a pubances or inventions, as to which the 256; Drury y. Ewing, 7 F. Cas. No. lic less educated than the judge. Yet law makes beneficial provision other- 4,095, 1 Bond 540; Folsom v. Marsh, if they command the interest of any wise." Griffin v. Kingston, etc., R.

9 F. Cas. No. 4,901, 2 Story 100; public, they have a commercial value Co., supra.

Lawrence v. Cupples, 15 F. Cas. No. Sit would be bold to say that they (a) Rule applied.- "The act in 8.135; Richardson v. Miller, 20 F. have not an æsthetic and educational question was passed in execution of Cas. No. 11,791; Walter Lane, value- and the taste of any public the power here given, and the object, [1900] A. C. 539, 2 BRC 312; Kena is not to be treated with contempt. therefore, was the

promotion of

rick v. Lawrence, 25 Q. B. D. 99; It is an ultimate fact for the moscience; and it would certainly be Cohbett v. Woodward, L. R. 14 Eq. ment, whatever may be our hopes a pretty extraordinary view of the 407; Church v. Linton, 25 Ont. 131 for a change." Bleistein V. Donsciences to consider a daily or weekly [dis from Griffin V. Kingston, etc., aldson Lith. Co., 188 U, S. 239, 251, publication of the state of the mar- R. Co., 17 Ont. 660]: Beullac v. Si- 23 SCt 298, 47 L. ed. 460 [rev 104 ket as falling within any class of mard, 39 Que. Super. 97 (aff 39 Que. Fed. 993, 44 CCA 296). them. They are of a more fixed, per- Super. 517).

41. Bleistein V. Donaldson Lith. manent and durable character. The Courts will not undertake to as- Co., 188 U. S. 239, 23 sСt 298, 47 L. term science cannot, with any pro- sume the functions of critics or to ed. 460 (rev 104 Fed. 993. 44 CCA priety, be applied to a work of measure carefully the degree of orig- 296); National Cloak, etc., Co. v. fluctuating and fugitive form as that inality, or literary skill train- Kaufman, 189 Fed. 215; National of a newspaper or price-current, the ing involved." National Cloak, etc., Tel. News Co. y. Western Union Tel. subject matter of which is daily Co. v. Kaufman, 189 Fed. 215, 219. Co., 119 Fed. 29, 56 CCA 198, 60 changing, and is of mere temporary "The least pretentious picture has LRA 805; Maple v. Junior Army,

Although great praise may be more originality in it than director- etc., Stores, 21 Ch. D. 369; Collis v. due to the plaintiffs for their indus- ies and the like, which may be copy- Cater, 78 L. T. Rep. N. S. 613; Church try and enterprise in publishing this righted." Bleistein V. Donaldson v. Linton, 24 Ont. 131 [dist Griffin v. paper, yet the law does not contem- Lith. Co., 188 U. S. 239, 350, 23 SCt Kingston, etc., R. Co., 17 Ont. 660). plate their being rewarded in this 298, 47 L. ed. 460 (rev 104 Fed. 993,

Bleistein V. Donaldson Lith. way; it must seek patronage and pro- 44 CCA 296).

Co., 188 U. S. 238, 232, 23 Sct 298, tection from its utility to the public [a] “While the pablio taste con- 47 L. ed. 460 (where, speaking of cirand not as a work of science. The tinues to give pecuniary value to a cus posters, the court said: "That title of the Act of Congress is for composition of no artistic excellence, these pictures had their worth and the encouragement of learning, and the court must continue to recognize their success is sufficiently shown by was not intended for the encourage- the value so created. Certainly the the desire to reproduce them without ment of mere industry. unconnected qualifications of judges would have regard to


plaintiff's rights"); with learning and the sciences." to be very different from what they Church v. Linton, 25 Ont. 131, 135 Clayton v. Stone, 5 F. Cas. No. 2,872, are if they were to be constituted (where the court said: "That the 2 Paine 382, 392.

censors of the arts." Hein v. Harris, papers must be of some merit and 39. Drury v. Ewing, 7 F. Cas. No, 175 Fed. 875, 877 [aff 183 Fed. 107, utility would seem to be proved by 4,095, 1 Bond 540; Kenrick v. Law- 105 CCA 399).

the defendant's willingness to abrence, 25 Q. B. D. 99; Hollinrake v. [b] "Nick Carter" detective stor- stract or convey various passages in Truswell, [1894] 3 Ch. 420; Manle v. ies, although not of the highest class them so as to form parts of his rival Junior Army, etc., Stores, 21 Ch. D. of literature, are proper subjects of advertisements"). 369; Collis v. Cater, 78 L. T. Rep. copyright. Atlas Mfg. Co. v. Street, 43. Unclean hands as a defense N. S. 613; Maclean v. Moody, 20 Dec. 204 Fed. 398, 122 CCA 568, 47 LRANS see infra § 390. Ct. Sess (2d ser) 1154; Church y. Lin- 1002


Hoffman v. Le Traunik, 209 ton, 25 Ont, 131.

(c) Toy soldiers made of metal Fed. 375; Barnes v. Miner, 122 Fed. [a] A dressmaker's chart was the may have sufficient artistic merit to 480; Bleistein v. Donaldson Lith, Co., proper subject of copyright. "It is be copyrightable under the Sculpture 98 Fed. 608 (rev on other grounds clearly no objection to the validity Copyright Act 1814 (54 Geo. III C 188 U. S. 239, 23 SCt 298. 47 L ed. of her copyright, that her produc- 56), although ordinary tin soldiers 160]; Broder v. Zeno Mauvais Music tion does not claim a standing as a not copyrightable for lack of | Co., 88 Fed. 74; Martinetti v. Ma


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ctherwise illegal,45 as a libel, 46 a blasphemy,47 or a by sailing under false colors is not entitled to copymere gambling device or instrumentality. But the right protection.52 Advertisements which are misillegality or immorality must be inherent in the leading and contain untrue statements are not copywork; the mere fact that the work may be used for rightable, and use thereof is not an infringement of an unlawful purpose will not deprive it of the right copyright.53 to protection.' So the mere introduction of an in- Infringing works. The view has been suggested decent word in a song will not vitiate the copyright that the copyright on a work which is an infringein such a sense as to put the whole musical com- ment of another work will be protected in so far as position into the public domain; the courts will the work is original. But this is very doubtful." simply refuse relief against infringement so long [ 0 100] 5. Domestic Manufacture. Where the statas such word is retained in the song, and the ille- ute does not so require, it is not necessary that the

55 gality may be purged by omitting the word.50 By work copyrighted shall be of domestic manufacture. analogy it has been held that a work put forth with But by the so-called “International Copyright Act” a false ascription of authorship, or otherwise seek- of 1891,56 which for the first time admitted to copying to defraud the public and acquire a circulation right the works of nonresident alien authors, it guire, 16 F. Cas. No. 9,173, 1 Abh. | ing, that the work which professed | public, and the work published by 363; Shook V. Daly, 49 How Pr (N. to be a history of the amours of a plaintiff was not one of Sturm's Y.) 366; Baschet v. London Illustra- courtesan, contained in some parts writings, but was an original work ted Standard Co., [1900] 1 Ch. 73; matter highly indecent, and in oth- written in English by a person who Stockdale v. Onwhyn, 5 B. & C. 173, ers matter of a slanderous nature on had been employed by plaintiff for 11 ECL 416, 108 Reprint 65, 2 C. & persons named in the work. Stock- that purpose, it was held that plainP. 163, 12 ECL 506; Du Bost V. dale v. Onwhyn, 5 B. & C. 173, 11 tiff could not have any copyright in Beresford, 2 Campb. 511; Fores V. ECL 416, 108 Reprint 65. 2 C. & P. the publication, and consequently Johnes, 4 Esp. 97; Lawrence v. Smith, 163, 12 ECL 506. " See Glyn v. West- could not maintain an action against Jac. 471, 4 EngCh 471, 37 Reprint ern Feature Film Co., [1916) W. N. defendants for piracy. Tindal, C. J., 928; Byron v. Dugdale, 1 L. J. Ch. Pt II 5 (novel "Three Weeks,” deal- in delivering the opinion of the court, 0. S. 239 (where a doubt existed as ing with sensual adulterous in- said: "The cases in which a copyto the character of the work, and trigue, held not entitled to protec- right has been held not to subsist the court dissolved an ex parte in- tion).

where the work is subversive of good junction, leaving plaintiff to assert 45. Hoffman v. Le Traunik, 209 order, morality, or religion, did not his legal rights by action); Southey Fed. 375; Hime v. Dale (cit Clementi indeed bear directly on the case bev. Sherwood, 2 Meriv. 435, 35 Reprint v. Golding, 11 East 244, 103 Reprint fore us; but they have this analogy 1006; Walcot v. Walker, 7 Ves. Jr. | 998] (sedition); Southey Sher- with the present inquiry-that they 1, 32 Reprint 1.

wood, 2 Meriv. 435, 35 Reprint 1006 prove that the rule which denies the [a] Indecent song.--"I am of the (sedition).

existence of copyright in those cases, opinion that the word 'hottest,' as 46. Baschet y. London Illustrated is a rule established for the benefit used in the chorus of song 'Dora Standard Co., (1900) 1 Ch. 73; Hime and protection of the public. And Dean,' has an indelicate and vulgar v. Dale, 2 Campb. 27 note; Fores v. we think the best protection that the meaning, and that for that reason Johnes, 4 Esp. 97; Walcot v. Walker, law can afford to the public against the song cannot be protected by 7 Ves. Jr. 1,32 Reprint 1.

such a fraud as that laid open by copyright. This decision will, how- 47. Cowan v. Milbourn, L. R. 2 this plea, is, to make the practice ever, not prevent the complainants Exch. 230; Murray v. Benbow, Jac. it unprofitable to its author." from republishing their song, and, 474 note, 4 EngCh 474 note, 37 Re- Wright v. Tallis, 1 C. B. 893, 907, 50 by omitting the objectionable word, print 929 note; Lawrence v. Smith, ECL 893, 135 Reprint 794. thus to secure valid copyright Jac. 471, 4 EngCh 471, 37 Reprint 52. Davies v. Bowes, 209 Fed. 53 therefor. In fact, it appeared in evi- 928; Burnett v. Chetwood (cit South- | [aff 219 Fed. 178, 134 CCA 552]; dence that the complainants had ey v. Sherwood, 2 Meriv. 435, 441, 35 Wright v. Tallis, 1 C. B. 893, 50 ECL since been publishing the song 'Dora Reprint_1006).

893, 135 Reprint 794; Hayward v. Dean' in this form. It results from [a] Rule applied.--An injunction Lely, 56 L. T. Rep. N. S. 418; Seeley what has been said that, while the restraining the publication of a pi- v. Fisher, 11 Sim. 581, 34 EngCh 581, complainants

undoubtedly en- rated edition of Lord Byron's "Cain" Reprint 998; Slingsby v. Bradford titled to a copyright for the melody was refused, for the reason that the Patent Truck, etc., Co., [1905] W. N.

122. of the song 'Dora Dean,' yet they chancellor doubted whether the poem are not entitled to a copyright of was not “intended to vilify and bring [a] Fiction masquerading as fact the song with the objectionable word into discredit that portion of Scrip- in the form of a newspaper report is in the composition. The bill will ture history to which it relates." not copyrightable. Davies v. Bowes, therefore have

to be dismissed." Murray V. Benbow, Jac. 474 note, 4 209 Fed. 53, 56 [aff 219 Fed. 178, 134 Broder v. Zeno Mauvais Music Co., 88 EngCh 474 note, 37 Reprint 929 note, CCA 552) (where the court said: “In Fed. 74, 79, 4 St. Tr. N. S. 1409.

my judgment the reasoning of Wright (b Immoral dramatic production. Blasphemy generally

Blas- v. Tallis, 1 C. B. 893, 50 ECL 893, - From this it expressly appears phemy 8 C. J. 1117.

135 Reprint 794, is applicable. There that the Constitution did not intend 48. Egbert v. Greenberg, 100 Fed. a publisher pretended that a copythat Congress should pass laws to 447, 448 ("official form chart"); Rich- righted work was a translation from promote immorality, or anything ex- ardson v. Miller, 20 F. Cas. No. 11,791. a well-known foreign writer.

It was, cept science and the useful arts. 49. Egbert v. Greenberg, 100 Fed. on the contrary, an original product For this reason an instrument or in- | 447; Richardson v. Miller, 20 F. Cas. by a native. It was held, and I vention expressly designed to facili- | No.' 11.791.

think rightly held, that such pretate the commission of crime,

[a] Playing cards. The fact that tense vitiated the copyright. The premurder, burglary, forgery, or counter- playing cards may be used by per

tense here was for the purpose of feiting, however ingenious, would not Sons to violate the laws against attracting attention and lending inbe entitled to be patented. So a real gambling does not of itself depriveterest to an alleged occurrence which dramatic composition, if grossly in- them of the protection of the law.

if told as fiction would have been decent, and calculated to corrupt the Richardson v. Miller, 20 F. Cas. No.

tawdry and unconvincing"). morals of the people, would not be 11,791.

Unfair competition in books and entitled to a copyright. Such an ex- [b] "Official form chart."-It has pablications see Trade-Marks, Tradehibition neither promotes the prog- been held that

"official form

Names, and Unfair Competition (38 ress of science or the useful arts.' chart" which is of value to persons

Cyc 831). but the contrary. The Constitution engaged in the breedingtrading, 53. Stone v. Dugan Piano Co., 220 does not authorize the protection of and raising of horses is a proper

Fed. 837, 136 CCA 583; Slingsby v. such productions, and Congress can- subject of copyright, although the Bradford Patent Truck Co., (1905) not be presumed to have intended to chart may also be used by persons W. N. 122 (where an illustrated catahave gone beyond their power to who bet on horse races. Egbert v. logue was denied protection because give them such protection.'' Barnes Greenberg, 100 Fed. 447. 448.

it falsely represented that the artiv. Miner, 122 Fed. 480, 490 [quot 50. Broder v. Zeno Mauvais Music cles depicted were patented by plainMartinetti v. Maguire, 16 F. Cas. No. Co., 88 Fed. 74.

tiff, and that plaintiff occupied the 9,173, 1 Abb. 356, 363). But see Hage- 51.

Wright v. Tallis, 1 C. B. 893, whole of certain pictured buildings). man V. Springer, 110 Fed. 374. 49 50 ECL 893, 135 Reprint 794 (appr

54. See supra § 91 text and note 63. CCA 86 [aff 189 U. S. 505, 23 SCt Davies v. Bowes, 209 Fed. 53).

Unclean hands a defense see 849. 47 L. ed. 921]

(where litho

[aIllustration.-Where plaintiff infra § 390. graphs advertising the "Black published a religious work, and on

55. Hills v. Hoover, 136 Fed. 701; Crook" were protected, and penalties the title page and in a preface ren

Oliver Ditson Co. Littleton, 67 for infringement were recovered). resented that the work was a trans- Fed. 905. 15 CCA 61 [aff 62 Fed. 597). [c] Immoral book.-No action can lation from

the German by one


Rev. St. 8 4956, be maintained to recover damages for Sturm, German writer whose amended by Act March 3, 1891 (26 loss sustained by the publication of works had been translated into the U. S. St. at L. 1107), a copy of a book which had been English language and first published by plaintiff, it appear.

were highly 57. Copyrights by nonresident valued and esteemed by the British aliens see infra § 158.













was provided that in the case of (1) a book, (2) a not "books” within the meaning of this clause;8 photograph, (3) a chromo, or (4) a lithograph, the and for the same reason, dramatic compositions, two copies of the same required to be deposited in although printed in book form,62 and prints63 did the copyright office as a condition of obtaining copy- not need to be printed from type set, or plates made, right therein,58 "shall be printed from type set within the United States to be entitled to copywithin the limits of the United States, or from plates right. Depositing copies printed from type set made therefrom, or from negatives, or drawings on within the Philippine Islands is not a compliance stone made within the limits of the United States, with this statute.64 or from transfers made therefrom," and during the The act of 1909 largely extended the scope of existence of such copyright the importation of any the requirements of domestic manufacture, and with book, chromo, lithograph, or photograph, or any negligible exceptions requires copyrighted books, edition or editions thereof, or any plates of the lithographs, and photo-engravings to be produced same, not made in accordance with such manufac- by processes wholly performed within the limits of turing requirement, was prohibited, with certain lim- the United States.65 Importation of works not proited exceptions. These provisions were limited to duced in accordance with the domestic manufacturthe four specified classes of copyrighted works.co ing requirements is prohibited.66 The statutory They did not apply to musical compositions, because phrases "separate lithographs or photo-engravthese form a distinct copyright class, and hence are ings,

and “where in either case the subjects 58. See infra $8 205–208.

ings on stone." Hills v. Hoover, 136, engraving process wholly performed 59, Act March 3, 1891 (26 U. S. St. Fed. 701; Hills v Austrich, 120 Fed. within the limits of the United at L. 1106 c 565 & 3). 862, 863.

States, except when the subjects rep(a)

Character of copies deposited. 64. "Typesetting in Philippine Isl. resented in such illustrations in a -It was necessary to a valid copy-ands," 25 Op. Atty.-Gen. 25. Copy- book or such separate lithographs or right under U. S. Rev. St. & 4956, as right office Bul. No. 3 p 114. See also photo-engravings 'are located in a amended 26 U. S. St. at L. 1107, that supra § 75.

foreign country and illustrate a sci. the copies deposited with the libra- 65, Act March 4, 1909 (35 U. S. St. entific work or reproduce a work of rian of congress shall be printed at L. 1075 c 320 & 15) (which reads art.' 30. Books by foreign authors from type set in the United States, as follows: "That of the printed in any language other than English or from plates made therefrom. Os- book or periodical specified in sec- are not required to be printed in the good v. A. S. Aloe Instrument Co., 69 tion five, subsections (a) and (b) of United States. In the case of books Fed. 291.

this Act, except the original text of printed abroad in the English lan60. Hervieu v. J. S. Ogilvie Pub. a book of foreign origin in a lan- guage an ad interim term of copyCo., 169 Fed. 978; Hills V. Austrich, guage or languages other than Eng. right of thirty days from registra120 Fed. 862; Oliver Ditson Co. v. lish, the text of all copies accorded tion made in the Copyright Office Littleton, 67 Fed. 905, 15 CCA 61 [aff protection under this Act, except as within thirty days after publication 62 Fed. 597].

below provided, shall be printed from abroad may be secured; but in order 61. Oliver Ditson Co. v. Littleton, type set within the limits of the to extend the copyright to the full 67 Fed. 905, 15 CCA 61 [aff 62 Fed. United States, either by hand or by term of protection, an edition of the 597] (where it was held that the re- the aid of any kind of typesetting work must be published in the United quirement that the two copies re- machine, or from plates made within States within the thirty days ad inquired to be deposited shall be manu- the limits of the United States from terim term, printed or produced withfactured in the United States did not type set therein, or, if the text be in the limits of the United States as apply, to musical compositions, al- produced by lithographic process, or required in section 15 of the copythough published in book form photo-engraving process, then by a right act." Rules and Regulations made by lithographic process).

process wholly performed within the for Registration of Claims to Copy62. Hervieu v. J. S. Ogilvie Pub. limits of the United States, and the right (Copyright Office Bul. No. 15), Co., 169 Fed. 978. printing of the text and binding of

rules 29, 30. [a] Reason for rule.-"From the the said book shall be performed [b] Importation of foreign reforegoing language, it is apparent within the limits of the United prints.-Defendant, an English comto me that Congress did not intend States; which requirements shall ex- pany, sold mechanical toys, and edito include 'dramatic or musical com- tend also to the illustrations within tions of a manual, copyrighted in the positions' as a 'book.' The proviso a book consisting of printed text and United States, were printed in Eng, leaves out map, chart, dramatic, or illustrations produced by lithographic land and accompanied the outfits sold musical compositions, engraving, cut, process, or photo-engraving process, in the United States. Copyright Act, print, or photograph, painting, draw- and also to separate lithographs or March 4, 1909 (35 U. S. St. at L. 1075 ing, statue, statuary, or model design photo-engravings, except where in ¢ 320 $$ 15, 31, 32), respectively, profor a work of fine arts. All these either case the subjects represented vide that works not produced for sale seem to have been purposely omitted are located in a foreign country and may be copyrighted; that any book from the list of those articles for illustrate a scientific work or repro- published abroad with authorization which the type must be set, or plates duce a work of art; but they shall of the author or copyright proprietor and drawings made, in the United not apply to works in raised charac- may be imported, but that works States. The act provides for the ters for the use of the blind, or to imported in violation of the act shall printing of the whole list. It was books of foreign origin in a language be destroyed. Such importation and self-evident to Congress, as it is to or languages other than English, or disposal of the English editions did everybody, that dramatic composi- to books published abroad in the not invalidate the copyright. Mections, if printed, must be upon sheets English language seeking ad interim cano v. Wagner, 234 Fed. 912, 23 of paper known by bookmakers as protection under this Act").

(where the court said: “So far as signatures, and these signatures [a] Copyright office regulations.- the issues in this case are concerned, must be folded, thus making what "29. The following works must be it is immaterial that editions of Mecmay be called a book'; but Congress manufactured in the United States

copyrighted Manuals especially eliminated both musical in order to secure copyright: (a) printed in England and accompanied and dramatic compositions from be- All books in the English language the Meccano outfits


in the ing classified as a book. Congress and books in any language by a citi

United States. Bentley v. Tibbals, twice designated, in the same sec

domiciled resident of the

223 Fed. 247, 138 CCA 489; Bowker, tion, map, chart, dramatic or musical United States must be printed from Copyright, Its History and Its Law, composition, engraving, cut, and type set within the limits of the pp. 279, 282, 283; Sections 15, 31, and print as independent of the word United States, either by hand or by 32, Copyright Act of 1909. The de"book,' as therein used. It has often the aid of any kind of typesetting fendant was not injured and cannot been held that a specific designation machine, or from plates made within complain"), of any article in the legislative en- the limits of the United States from 66. See infra 88 441, 442. actment excludes it from general type set therein, or, if the text of 67. See supra note 65 quoting terms contained in the same act." such books be produced by litho- statute. Hervieu v. J. S. Ogilvie Pub. Co., 169 | graphic process or photo-engraving [a] "Separate lithographs or phoFed. 978, 981.

process, then by a process wholly to-engravings."-"Certain paintings 63. Hills v. Hoover, 136 Fed. 701; performed within the limits of the were created in England by an artist Hills v. Austrich, 120 Fed. 862.

United States; and the printing of who was a British subject, and these (a) Pictures printed in successive the text and binding of the book paintings have never been within the colors from metal plates, from which must be performed within the limits United States. On the presentation part of the metal has been cut so as of the United States. (b) All illus- of photographs thereof, with applicato leave portions thereof in relief, trations within a book produced by tions for registration of copyright

entitled to copyrights as | lithographic process or photo-engrav- under Class 'G' section 5, act of "prints," and were not within the ling process and all separate litho- March 4. 1909 (35 Stat. 1077), as proviso requiring domestic manufac- graphs or photo-engravings must be 'works of art,' the applications were ture because not "printed from draw- produced by lithographic or photo. | passed for entry and certificates of







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