« ForrigeFortsett »
A copy-right may exist in a translation as much as in an original composition, and whether it be produced by personal application and expense, or by gift.1 1 A copy. right may exist in part of a work, without having an exclusive right to the whole. Gray's poems were collected and published, with additional pieces, by Mason; and Lord Bathurst *prohibited, by injunc- *382 tion, the unauthorized publication of the additions.1" So, Lord Hardwicke restrained a defendant from printing Milton's Paradise Lost, with Dr. Newton's notes." A mere colourable abridgment of a book is an evasion of the statute, and will be restrained; but, as Lord Hardwicke observed, this will not apply to a real and fair abridgment; for an abridgment may, with great propriety be called a new book. It is often very extremely useful, and displays equally the invention, learning, and judgment of the author.d A bona fide abridgment of Hawkesworth's Voyages has been held no violation of the original copy-right.® So, an abridgment of Johnson's Rasselas, given as an abstract in the Annual Register, was held not to be a piratical invasion of the copy-right but innocent, and not injurious to the original work.f
• Wyatt T. Barnard, 3 Ves. $ Bea. 77.
b Mason v. Murray, cited in 1 East's Rep. 369.
• Lord Kenyon, in 1 East's Rep. 361. Tonson v. Walker, 1752. 3 Swanst. Rep. 671. Though there was nothing new in Milton's Paradise Lost, with Newton's notes, except the notes, Lord Hardwicke granted an injunction against the whole book ; but the rule seems now to be, that chancery cannot grant an injunction against the whole of a book, on account of the piratical quality of a part, unless the part pirated is such, that granting an injunction against that part necessarily destroys the whole. An action at law may be brought for pirating a part. Lord Eldon, in Mawman v. Tegg, 2 Russell's Rep. 398. An editor may have a copyright in his own marginal notes. Wheaton v. Peters, 8 Peters' Rep. 591.
s Gyles v. Wilcox, 2 Atk. Rep. 141.
• Anon. Loft's Rep. 775.
r Dodsley v. Kinnersley, Amb. Rep. 403. This latitudinary right of abridgment is liable to abuse, and to trench upon the copy-right of the author. The question as to a bona fide abridgment may turn, not so much
A person cannot, under the pretence of quotation, publish either the whole, or any material part of another's
upon the quantity, as the value of the selected materials. Ail the vital part of another's book, said Lord Cottenham, might be taken, though it might be of a small proportion of the book in quantity. The slightest circumstances in these cases, as Lord Eldon well observed, make the most important distinction. Wilkins v. Aikin, 17 Vesey, 425. Bramwell v. Holcomb, 3 Jiylne $ Craig, 737. Saunders v. Smith, lb. 728, 729. Mr. Justice Story makes some very just and pertinent observations on this point, in the case of Gray v. Russell, C. C. U. S. for Massachusetts, October Term, 1839,1 Story's U. 11. And as evidence of the sensibility as well as good sense and sound morality of authors on this subject, we may refer to Dr. Lieber, who condemns this abuse of copy-right under the shape of abridgments, and holds that it is as if a man had a right to cut the ears of my corn, provided he leaves the stalks untouched. Political Ethics, vol. i. 133. Lord Campbell, in his very interesting and learned " Lives of the Lord Chancellors," vol. v. 56, questions the extent of the rule laid down by Lord Hardwicke, which may extend to an abridgment tending to injure the reputation and lessen the profits of an author. In Curtis' Treatise on Copyright, the author reviews critically the English and American cases on this point, and arrives at the following conclusion: "The results to which English and American jurisprudence ought to come, upon this question, is, that an abridgment, in which the text, the plan, the ideas, arguments, narrative and discussion of an original author are reproduced, in a condensed form, is a violation of his right of property." Curtis on Copyright, p. 280. He cites Renouard's Droits a" Auteurs, tom. I. p. 249. 269, and tom. 2. p. 29—24, by which it seems that, in France, by the law of 1793; and in Belginm, by a law of the 25th January, 1817, and by the Prussian law of the 11th June, 1837, abridgments, without license, are violations of the author's rights.
There would seem to be little doubt that the case supposed by Mr. Curtis, and indeed much less than the case supposed, would be a violation of copy-righi : and, at the same time, it may be admitted that no monopoly can, or ought to exist in ideas. In the Appendix to Maugham's treatise on the laws of literary property, p. 216—228, various opinions are collected on the nature of literary property, which, if allowed to be correct, may have decisive effect in resolving the present enquiry. A writer, in the Monthly Review for 1774, (Maugham, appendix, p. 221,) observes: "Every man's ideas are doubtless his own, and not the less so because another person may have happened to fall into the same train of thinking with himself. But this is not the property which an author claims; it is a property in literary composition, the identity of which consists in the same thoughts, ranged in the same order, and expressed in the same words." Mr. Margrave's opinion is to tho same effect, vMaugham, p. work; but he may use, what is in all cases very difficult to define, fair quotation.* A man may adopt part of the work of another. The quo animo is the inquiry in these cases. The question is, whether it be a, legitimate use of another's publication, in the exercise of a mental operation, deserving the character of an original work." If an encyclopoedia or review should copy so much of a book as to serve as a 'substitute for it, it be. *383 comes an actionable violation of literary property, even without the animus furandi. If so much be extracted as to communicate the same knowledge as the
216): "The subject of the property is a written composition; and that one written composition may be distinguished from another is a troth too evident to be much argued upon. Every man has a mode of combining and expressing his ideas peculiar to himself. The same doctrines, the same opinions never came from two persons, or even from the same person at different times, clothed wholly in the same language. A strong resemblance of style, of sentiments, of plan and disposition, will frequently be found; but there is such an infinite variety in the mode of thinking and writing, as well in the extent and connection of ideas, as in the use and arrangement of words, that a literary work wholly original, like the human face, will always have some singularities, some lines, somefeatures to characterize it, and to fix and establish its identity."
These opinions seem to accord in the principle that the proper object of the copy-right is the peculinr expression of the author's ideas, meaning by this, the structure of his work, the sequence of his remarks, and, above all, his language; and that this peculiarity is always distinguishable, as, by a law of nature, every human production is stamped with the idiosyncracy of the author's mind.
If these views are correct, it will follow that any abridgment of the work, in the original author's language, is an infringement of his right; and, indeed, every quotation will be, pro tanto, a violation, unless excused on the ground of its inconsiderable extent, or on the presumed assent of the author, which in works of fair criticism, might be justly implied.
* Mr. Curtis, after an examination of the authorities on the question how far the quotation of passages may be allowed, even when there is a fair acknowledgment of the source from which they are taken, observes: "There is no more definite and consistent limits than the point where an injury may be perceived, which varies of course in each case, and is not by our law supposed to be capable of a distinct announcement by a positive rule." Curtis on Copyright, p. 252.
» Wilkins v. Aikin, ll-Ves. 422.
original work, it is a violation of copy-right. It must not be in substance a copy. An encyclopoedia must not be allowed by its transcripts, to sweep up all modern works. It would be a recipe for completely breaking down literary property.*
The act of congress of 1831, (and of which the substance has been given in the preceding pages,) has greatly enlarged the privilege of copy-right beyond that which existed under the acts of congress of 1790 and 1802. Under those acts, the exclusive right of printing, publishing and vending, was confined to the term of fourteen years, with the privilege of renewal for the further term of fourteen years, if the author should be living when the first term expired. The act of 1831 extends and continues to the proprietors of copy-rights then existing, and not expired when the act passed, the benefit of all its pro
* Roworth v. Wilkes, 1 Campb. N. P. Rep. 94. Iu Bohn v. Bogue, before the V. Chancellor of England, in Feb. 1846, (New-York Legal Observer for August, 1846,) it was held that tho word substitute was not correctly used by Lord Ellenborough, in the case in Campbell, for a work may be a piracy though the passages copied are stated to be quotations, and are not so extensive as to render the practical work a substitute for the original work. If the piracy take, though as quotation, a materially valuable part of a work, it is a breach of copy-right, and chancery will interfere and direct a trial on that point. If the matter extracted from a publication be merely for the purpose of criticism, or if the matter extracted be too minute as a matter of property or value, it will not be protected under an injunction. Bell v. Whitehead, in the English Chancery, 1839. In the case of the Publishers of Sparks' Life of Washington v The Publishers of Upham's Life of Washington, in U. S. C. C. for Massachusetts, 1841, it appeared that 353 pages out of 886 pages of which the 2 volumes of the work of the defendant was composed, were copied verbatim from the former work, being letters of Washington. Judge Story granted a perpetual injunction, and held that the letters of Washington were the subject of copyright under the circumstances in which they were placed. He laid down the general proposition that if so much of a work be taken in form and substance, that the value of the original work is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, it constitutes, in point of law, piracy pro tanto.
visions for the enlarged term given by the act, to be computed from the time of the first entry of the copy-right under the former statutes, and with the like privilege of renewal, as is provided in relation to copy-rights originally secured under the act of 1831. All the provisions and remedies intended for the protection and security of copy-rights, are declared to extend to the benefit of the proprietors of copy-rights already obtained according to law, during the extended term thereof, in the same manner as if the copy-right had been entered and secured under the new act.*
Under the English law it was understood that if the author assigned away his right generally, and outlived the period of 28 years, his assignee, by the general assignment, would have the benefit of the resulting term of fourteen years more. Such a contingent right in the author himself, will pass by the general assignment of all his interest in the copy-right.b *But if the *384 author died before the expiration of the period entitling him to a renewal, his personal representatives, and not the assignee, were entitled to the renewal.0 The language of the act of congress, giving the right of renewal, in the case of the author's death, to his widow
» Act of Congreu, February 3d, 1831, ch. 16. sec. 15, 16. The act of congress of Feb. 15th, 1819, ch. 19, gave to the circuit courts original cognizance, as well in equity as at law, of all suits and controversies, arising under any law of the United States, granting or confirming to authors or inventors the exclusivo right to their writings or discoveries; and with authority on bills in equity to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of authors or inventors.
b Carnan v. Bowles, 2 Bro. C. C. 80. By act of Congress of June 30th, 1834, instruments in writing for the transfer or assignment of copy-rights, are to be proved or acknowledged, as deeds for the conveyance of land are, and are to be recorded in the office whore the original copy-right is deposited and recorded. If not so recorded within sixty days after execution, they are to be deemed fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without notice.
» Petendorff'l Abr. vol. vi. p. 565.