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COPYRIGHT.

Vol. II, p. 256, sec. 4952.

What may be copyrighted. - To be entitled to be copyrighted, the composition must be "original, meritorious, and free from illegality or immorality." And "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 of another." However, "a new and original plan, arrangement, or combination of materials will entitle the author to a copyright therein, whether the materials themselves be new or old." Hoffman v. De Traunik, (N. D. N. Y. 1913) 209 Fed. 375.

A photographic picture which is the result of the exercise of artistic talent may be the subject of a copyright. Gross v. Seligman, (C. C. A. 2d Cir. 1914) 212 Fed. 930.

Vol. II, p. 261, sec. 4956.

Deposit of two copies. In Huebsch v. Arthur H. Crist Co., (N. D. N. Y. 1914) 209 Fed. 885, the certificate of the librarian of Congress and the register of copyrights in a suit for infringement of a copyright was held to be sufficient evidence to show that the author had mailed two copies of the book addressed to the Librarian of Congress, as the certificate established what it stated in the absence of a contradiction.

Type set within United States. - Evidence that a firm within the United States was employed to print a book and that such firm afterwards delivered the printed book ready for binding was held to be sufficient to show that the book was printed from type set within the United States or from plates made therefrom. Thus in Huebsch v. Arthur H. Crist Co., (N. D. N. Y. 1914) 209 Fed. 885, the court said: "If A. goes into

Vol. II, p. 268, sec. 4965.

In a musical composition the making of an alto part and combining it with the tenor, soprano and bass of a piece of music is not such an addition or such an original composition as can be copyrighted. Cooper v. James, (N. D. Ga. 1914) 213. Fed. 871.

An episode printed as news in a daily paper is not within the protection of the copyright law. A fictional report of an incident published in the form of news so as to induce belief, cannot be covered by the general copyright for a newspaper, so as to entitle the assignee of the publisher's rights under the copyright, to enjoin the use of the alleged facts for use in dramatic form. Davies v. Bowes, (S. D. N. Y. 1913) 209 Fed. 53.

the Tribune office, or Sun office, or World office, and contracts for the printing and publication of a book of which he is the author, which he desires to copyright and put on the market, and the book printed and ready for the binder comes to him in due time; is not proof of these facts sufficient evidence that such book was printed from type set or plates made from type set within the United States? Must witnesses be called who either did the work or saw it done, to testify that the type from which the plates were made was set in the United States? It seems to me a fair and just inference and conclusion that the work was done in that office. It is true that the work may have been done outside the United States, but I do not think the complainant called upon to negative that possibility."

Two remedies are embraced within the meaning of this section, one to recover the infringing copies and the other a penalty of a dollar for every copy seized, both enforceable in the same action. Hills v. Hoover, (C. C. A. 3d Cir. 1914) 211 Fed. 241.

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Statutes (4 Fed. Stat. Annot. 577) cannot issue. Dixon v. Corinne Runkel Stock Co., (E. D. N. C. 1914) 214 Fed. 418.

Preliminary injunction. - A preliminary injunction will not be granted when the de

fendant answers under oath that lines and expressions appropriated from the complainant's monologue were not originated by the complainant but were in prior use on the

Vol. II, p. 271, sec. 4970.

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Use of part. The appropriation of isolated expressions and lines is sufficient to constitute infringement if complainant can establish their originality with him. Hoffman v. Le Traunik, (N. D. N. Y. 1913) 209 Fed. 375.

Republication of portion of book as advertisement.-In Stone v. Dugan Piano Co., (E. D. La. 1914) 210 Fed. 399, it appeared that the complainant had copyrighted a book entitled "Manual of Instruction in the Use of Stone & McCarrick (Incorporated) System of Salesmanship," intended to be used by its subscribers and licensees for reprinting parts thereof in a series of articles for advertisements, and that the Dugan Piano Company had republished substantial parts of the copyrighted book in a newspaper as advertisements of the wares offered by it for sale. Holding that such republication as an advertisement did not constitute an infringement, the court said: "As to whether advertisements may be copyrighted, there are cases both ways; but conceding, for the sake of argument, that advertisements in the forms copyrighted by the complainant would possess sufficient artistic and literary merit to be the subject of copyright, it seems to me that the second ground of objection is destructive of complainant's case. Complainant has copyrighted a book and not an advertisement. Defendants have published an advertisement and not a book. The book is in the nature of a manual of instruction and is designed to teach piano dealers how to attractively advertise their wares and contains forms, or models, or diagrams of advertisements, just as we may choose to term them. If complainant had published and copyrighted a manual of instruction designed to teach piano makers how to build the instruments, any person would be entitled to follow the instructions and diagrams to construct a piano. I can see no distinction between a system of instruction as to how to make a piano and a system of instruction as to how to draw an advertisement. The copyright of the book did not prevent the general public from making use of the book for the purpose for which it was designed, notwithstanding such use results in the publication of a part of the book in the form of an advertisement. In my opinion the case is on all fours with the decision in Baker v. Selden, 101 U. S. 99, 25 L. ed. 841."

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stage, the damage not being serious and no public interest being involved. Hoffman v. Le Traunik, (N. D. N. Y. 1913) 209 Fed. 375.

immaterial that the performance is only of a scene or part of a scene. Herbert v. Shanley Co., (S. D. N. Y. 1915) 222 Fed. 344. In this case injunctive relief was refused to the authors of a dramatico-musical composition, who took out a copyright for one of its songs separately as a musical composition, since by so doing they necessarily gave to the public all musical rights except as they were covered by the resulting copyright. The court held that whatever was the minimum of musical rights, it included the right to perform the music publicly without any unnecessary accessories; that singing the words to the music was within the musical rights so dedicated and that a public performance of the kind was within the statutory copyright which the authors received as consideration for their dedication.

The

Enjoining state court from determining question of fact. Section 4970 authorizing injunctions to prevent the violation of a right secured by the act, does not authorize a federal court to enjoin a state court from determining a question of fact as to the ownership of literary property. idea that as soon as it appears that some question of fact is shown to exist, the state court may be enjoined from acting, has no support in precedent or principle. Carl Laemmle Music Co. v. Stern, (S. D. N. Y. 1913) 209 Fed. 129.

Preliminary injunction. A preliminary injunction restraining the infringement of a copyright will not be granted when the plaintiff's title to rights in the works alleged to be copyrighted is denied in the answer and the plaintiff's have introduced no evidence to prove their title. Ginn v. Apollo Pub. Co., (E. D. Pa. 1913) 209 Fed. 713.

A preliminary injunction is granted more readily in dramatic than in other cases because the delay in waiting for a final decree would generally amount to a denial of justice. Chappell v. Fields, (C. C. A. 2d Cir. 1914) 210 Fed. 864.

Pleading. Bill or complaint. — In Bureau of National Literature v. Sells, (W. D. Wash. 1914) 211 Fed. 379, it was held that an allegation that the plaintiff was the owner of the copyright of a work known as "Messages and Papers of the Presidents" and that the defendants had secured second hand sets of the publication and reconstructed them and were selling them rebound to the public as and for the publication published by the plaintiff, did not state a cause of action for infringement of copyright. But had the complaint alleged that the defendants sold and delivered copies to which the plaintiff still retained title, the allegation would have been sufficient.

Vol. II, p. 272, sec. 1.

Requirements as to notice.-Every reproduction of a copyrighted painting must bear a statutory notice even though several appear on one sheet. Dejonge v. Breuker & Kessler Co., (1914) 235 U. S. 33, 35 S. Ct. 6, 59 U. S. (L. ed.) 113.

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1909 Supp., p. 81, sec. 1b.

"Copies" and "versions."- Memoranda sheets prepared by a teacher for the use of his students from a copyrighted work constitute "copies" or "other versions" of the work and an infringement. Macmillan v. King, (D. C. Mass. 1914) 223 Fed. 862.

Meaning of words "make any other version thereof."- In Ricordi V. Mason, (C. C. A. 2d Cir. 1913) 210 Fed. 277, the

1909 Supp., p. 81, sec. 1 (e).

"For profit."- By the words "for profit" Congress seems to have meant a direct pecuniary charge for the performance, such as an admission fee or a fee deposited in a coin operated machine, although the latter is excepted by the act. John Church Co. v. Hilliard Hotel Co., (C. C. A. 2d Cir. 1915) 221 Fed. 229.

"Musical composition" would seem to mean both words and music. Mills v. Standard Music Roll Co., (D. C. N. J. 1915) 223 Fed. 849.

Infringement of copyrighted musical composition by licensee. - In Mills V. Standard Music Roll Co., (D. C. N. J. 1915) 223 Fed. 848, wherein it was held that an infringement of musical composition was shown, the facts as stated by the court were as follows: "F. A. Mills, Incorporated, the plaintiff, has instituted two suits against the Standard Music Roll Company, a corporation, the defendant, for alleged infringements of the plaintiff's copyrights in two musical compositions, entitled respectively, 'Waiting for the Robert E. Lee' and "Take Me to That Swanee Shore.' They were copyrighted on May 3, 1912, and August 30, 1912, respectively. The suits were tried together, as the facts and questions presented in each are the same. The plaintiff is engaged in the publication of musical compositions, and the defendant in the manufacture of perforated music rolls serving to reproduce mechanically the musical features of such compositions. Prior to the committing of the alleged infringing acts, the plain

which will entitled the owner of the copyright to an injunction. Ladd v. Oxnard, (C. C.) 75 Fed. 703, 730. And, as held in that case, there may be such publication, although the number of persons to whom copies are delivered is limited, and their rights to the copies also limited by agreement with them."

court held that a publication entitled "Opera Stories" which was nothing but a brief epitome of the plots of two operas, the librettos of which had been copyrighted, was not "a version" of the copyrighted work. See also Ricordi v. Mason, (S. D. N. Y. 1912) 201 Fed. 184; and annotation thereto in 1914 Supp. p. 567.

tiff had licensed the defendant to use the copyrighted musical compositions in the manufacture of its perforated rolls. The defendant inclosed and distributed in the boxes containing the rolls separate sheets or slips of paper, on which it had caused to be printed the words or lyrics of the compositions. This, it is claimed, infringed the plaintiff's copyrights."

The court said: "But it is further urged on behalf of the defendant that because the plaintiff has licensed others to use the copyrighted works upon parts of instruments serving to reproduce mechanically the musical works, and has failed to file a notice thereof in the Copyright Office, as provided by subsection 'e' of section 1 of the act of 1909, it is, by virtue of that section, barred from any recovery for an infringement of its copyrights. It is true that this section makes it the duty of the owner of the copyright, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file a notice thereof in the Copyright Office, and provides that 'any failure to file such notice shall be a complete defense to any suit, action or proceeding for any infringement of such copyright.' It is the defendant's contention that this provision bars recovery for any infringement of the copyright; while the plaintiff contends that it only precludes it from instituting a suit for infringement against one using the copyrighted work, or a part thereof, in the man

ufacture of parts of instruments serving to reproduce mechanically the musical work. I think that the latter construction is the proper one. The question is novel, not having been passed upon by any court, so far as I have been able to ascertain. The statute secures to the persons entitled thereto several exclusive rights, which are mentioned separately in distinct subsections. The plaintiff was entitled to the exclusive right (1) to print, reprint, publish, copy, and vend the copyrighted work (subsection 'a'); (2) to perform the copyrighted work publicly for profit, etc.; and (3) for the purposes set forth in subsection 'a,' to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author could be recorded and from which it might be read or reproduced (subsection 'e'). The two first mentioned rights existed prior to the act of 1909 (Rev. Stat. §§ 4952 and 4966), but the third one did not. White-Smith Music Publishing Company v. Apollo Company, 209 U. S. 1, 28 Sup. Ct. 319, 52 L. ed. 655, 14 Ann. Cas. 628. In subsection 'e' it is provided, 'as a condition of extending the copyright control to such

1909 Supp., p. 82, sec. 2.

Abandonment of common law right. One who has obtained statutory copyright of a book or play does not retain any common-law right in literary property by virtue of this section, which is intended only to indicate that the statute does not dis

1909 Supp., p. 82, sec. 3.

Musical composition. In the case of a copyrighted musical composition the unauthorized use of either the words or music separately will constitute an infringement of the copyright although the words and music are not copyrighted separately. Mills v. Standard Music Roll Co., (D. Č. N. J. 1915) 223 Fed. 849, wherein the court said: "It has been so held in this district in M. Witmark & Sons v. Standard Music Roll Co., (D. C.) 213 Fed. 532, although this apparently was not the rule in this circuit prior to the act of 1909. M. Witmark & Sons Co. v. Standard Music Roll Co., 221 Fed. 376, (C. C. A. 3d Cir.). It therefore follows that the defendant has infringed the plaintiff's copyrights by the unauthorized printing and distribution of the words of the copyrighted musical compositions." In Witmark v. Standard Music Roll Co., (C. C. A. 3d Cir. 1915) 221 Fed. 376, which affirmed (D. C. N. J. 1914) 213 Fed. 532 and is mentioned in the above quotation, the court said: "The practical interpretation which for a long time had been given to this statute by the Copyright Office for the registration of copyrights required the applicant to state whether the article for which he desired copyright is a book, musical com

mechanical reproductions,' that if the owner of the copyright use or permit others to use the copyrighted work upon parts of instruments serving to reproduce mechanically a musical work, any other person may make similar use of it upon payemnt of a royalty therein provided for; and in a separate and further proviso of the same subsection appears the clause which the defendant now invokes. Subsection 'e' confers and deals with certain phases of a new copyright. The failure to file the notice of user is, by the act, a defense to an infringement of 'such' copyright. The use of the word 'such,' therefore, I think, refers only to the copyright conferred by subsection 'e.' Also the location of the proviso in the section and context, I think, lends strength to this view. The proviso is found in and it is part of a distinct subsection, and is not applicable at all to some of the other matters dealt with in the other subsections. It therefore follows that, as these suits are not for infringement of the plaintiff's exclusive right secured under subsection 'e', but for the right secured under subsection 'a,' the plaintiff's failure to have filed a notice of user is not a defense to this suit."

place the common-law right. Whoever elects to avail himself of the statute, must be held to have abandoned his common-law right. Photo-Drama Motion Picture Co. v. Social Uplift Film Corporation, (C. C. A. 2d Cir. 1915) 220 Fed. 448.

position, engraving, or other thing as defined. Articles named in the copyright statutes as subject to copyright were classified on the application blanks, and the rule has provided that, if only the words of a song were desired to be protected, the application should be made out for a 'book'; whereas, if protection was desired for both words and music, the application had to be made for a musical composition. The Copyright Office in 1905, in further interpretation of the statute enumerating the classes of articles which became subjects of copyright protection, informed persons generally that, 'if the words only of a song are desired to be protected, the designation "book" should be used.' Under these rules a copyrighted 'musical composition' covered words and music; while, if the applicant intended to copyright only the words of a song, he must have designated his work under the classification of 'book,' which has been construed to be a literary composition."

The words "component parts" do not mean subdivision of rights, licenses, or privileges, but refer to the chapters, subdivisions, acts and the like, of which most works are composed. New Fiction Pub. Co. v. Star Co., (S. D. N. Y. 1915) 220 Fed. 994.

1909 Supp., p. 83, sec. 7.

Public documents.-An article that was a republication of a bulletin issued by the United States Bureau of Education was held to be not copyrighted for want of original authorship. Du Puy v. Post Tel. Co., (C. C. A. 3d Cir. 1914) 210 Fed. 883.

1909 Supp., p. 83, sec. 8.

History of copyright legislation and rights of aliens thereunder. In Bentley v. Tibbals, (C. C. A. 2d Cir. 1915) 223 Fed. 247, the court said: "The English House of Lords, in Donaldson v. Becket, 4 Burr. 2408 (1774), decided that the exclusive right of multiplying and vending copies of an intellectual work is of purely statutory origin. And the Supreme Court of the United States rendered a similar decision in Wheaton v. Peters, 8 Pet. 591, 8 L. ed. 1055 (1834). The earliest statute on the subject was passed in England in 1710. St. 8 Anne, c. 19. Connecticut passed a copyright act in 1783, which was entitled 'An act for the encouragement of literature and genius.' It recited in its preamble that: 'It is perfectly agreeable to the Principles of Natural Equity and Justice that every Author should be secured in receiving the Profits that may arise from the Sale of His works, and such Security may encourage Men of Learning and Genius to publish their Writings; which may do Honor to their Country and Service to Mankind.' Acts and Laws of Conn. Jan. Sess. 1783. By that act copyrights were to be granted for 14 years, with the benefit of a second term of the same length. The act was passed in January and Massachusetts passed a like act in March and New Jersey in May of the same year. St. 1782, c. 58. Virginia followed in 1785 (12 Henning's St. at Large, p. 30), and New York in 1786 (Laws 1786, c. 54). These acts were all passed prior to the adoption of the Constitution of the United States. But Congress, in the exercise of the power conferred upon it by the Constitution 'to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,' passed the first federal statute on the subject on May 31, 1790. 1 Stat. p. 124, c. 15. The act of 1790 granted copyright to such author only as may be a citizen of the United States or resident therein,' and this continued to be

1909 Supp., p. 83, sec. 8 (b).

Judicial notice of reciprocal conditions. "April 9, 1910, President Taft issued a proclamation stating that citizens of Great Britain are entitled to the benefit of our copyright law, with an exception not material in this case. This proclamation is conclusive evidence of the fact that Great

the policy of Congress in the subsequent acts passed upon the subject until 1891. Prior to that time, and beginning as early as 1837, Congress was asked many times to grant protection to foreign authors and it repeatedly refused to do so. In this respect the United States pursued for years a policy less liberal than Great Britain and other foreign nations. By the act of Congress of March 3, 1891, the provisions of the copyright laws of the United States were extended to citizens and subjects of a foreign state or nation only when such state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as to its own citizens, or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may at its pleasure become a party to such agreement. 26 Stat. p. 1106, c. 565. And the President of the United States, acting under the provisions of the act, issued a proclamation on July 1, 1891, in which he declared that, as citizens of the United States had the benefit of copyright in Great Britain on substantially the same basis as the subjects of that country, those subjects were entitled to the benefits given under the Copyright Act of Congress of 1891. 27 Stat. pp. 981, 982. And under the Copyright Act of 1909 the subjects of Great Britain are still entitled to the benefit of the privileges of copyright in the United States. The act in section 8 declares that the author of any work made the subject of copyright by the act shall have copyright for such work under the conditions and for the terms specified in the act. In accordance with the provisions of the act the President of the United States on April 9, 1910, issued his proclamation declaring that under the conditions of the act the subjects of Great Britain were entitled to the benefits of the act."

Britain at that date gave our citizens the benefit of her copyright laws on substantially the same basis as to her own citizens, and the courts have no right to review it." Chappell v. Fields, (C. C. A. 2d Cir. 1914) 210 Fed. 864.

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