The judgment of the Circuit Court is therefore affirmed.

Mr. Justice White, with whom concur Mr. Chief Justice Fuller, and Mr. Justice Peckham, dissenting:

It is true that in United States v. Perkins,

eral nor the state government can tax the | v. Baltimore & O. R. Co. 17 Wall. 322, 332, property or agencies of the other, since, as 21 L. ed. 597, 601." repeatedly held, the taxes imposed are not upon property, but upon the right to suc-163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. ceed to property. Rep. 1073, and Plummer v. Coler, 178 U. S. If the position of the plaintiff be sound, it 115, 44 L. ed. 998, 20 Sup. Ct. Rep. 774, [255] will come to pass *that, with the same pow- it was held in the one case that an inherer to tax the subject-matter, i. e., the trans- itance tax of the state of New York could mission of the property, the states are com- be taken out of a bequest to the United petent to limit the amount of bequests to States, and in the other that a bequest of the Federal government by requiring the bonds of the United States was subject to a prepayment of a succession tax as a condi- state inheritance tax. It is also true that in tion precedent to the transmission of the Knowlton v. Moore, 178 U. S. 41, 44 L. ed. property, while Congress is impotent to ac- 969, 20 Sup. Ct. Rep. 747, it was decided complish the same result with respect to that the United States had the power to imlegacies to states or their agents. We are pose an inheritance tax. But the ruling reluctant to admit the inferiority of Con- in none of these cases, in my opinion, susgress in that particular. tains the decision now made. The power of the state of New York, which was upheld in both the Perkins and Coler cases, rested not simply on the authority of that state to impose an inheritance tax, but upon its admitted right to regulate the transmission or receipt of property by death. It is conceded in the opinion of the court On the other hand, the right of the United that the bequest upon which it is sought to States to levy an inheritance tax, which was levy the United States inheritance tax was upheld in Knowlton v. Moore, was based made to a municipal corporation for a pub- solely upon the power of the United States lic, that is, a governmental, purpose. This to tax, and that case, therefore, conveys no being the admitted premise, I cannot give intimation that there is authority in the my assent to the proposition that the tax United States to levy an inheritance tax upcan be imposed. Nothing is better settled on an object which it has no power under than that the United States has no power to the Constitution to tax at all, either directly tax the governmental attributes of the states, or indirectly. The distinction between the and that municipal corporations are agencies two, that is, between the broader power of of the states, and not subject, as to their a state, resulting from its authority not onpublic rights and duties, to direct or indirectly to tax but also to regulate the transmistaxation by the United States. The doctrine sion or receipt of property by death, and the has nowhere been more clearly stated than in narrower power, that is, of taxation alone, Pollock v. Farmers' Loan & T. Co. 157 U. vested in the government of the United S. 429, 583, 584, 39 L. ed. 759, 820, 15 Sup. States, was explicitly pointed out in KnowlCt. Rep. 673, 690. In that case, despite the ton v. Moore, 178 U. S. at page 57, 44 L. ed. division of opinion on other questions, the at p. 976, and 20 Sup. Ct. Rep. at p. 754. court was unanimous in holding that, in any Moreover, attention was specially directed event, income subject to taxation by the to the obvious distinction between the two United States could not include interest derived from municipal bonds, because to in-754, where it was said: ou page 58, L. ed. p. 977, Sup. Ct. Rep. p. clude such interest in income subject to tax- "Of course, in considering the power of ation would amount at least to an indirect Congress to impose *death duties, we elimi-[257] charge upon a state governmenta' agency.nate all thought of a greater privilege to do Speaking through Mr. Chief Justice Fuller, so than exists as to any other form of taxathe court said: vested in the states, and not in Congress." tion, as the right to regulate successions is

"The Constitution contemplates the independent exercise by the nation and the state, severally, of their constitutional pow

ers.

"As the states cannot tax the powers, the operations, or the property of the United [256] States, nor the means which they employ to carry their powers into execution, so it has been held that the United States have no power under the Constitution to tax either the instrumentalities or the property of a state.

So also, the difference between the two had

been previously accentuated in Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 287, 288, 42 L. ed. 1040, 18 Sup. Ct. Rep. 594. There is no confusion between the two classes of cases, and no room in reason seems to me to exist for the assumption that things which are different are nevertheless one and

the same. On the contrary, to my mind it appears that misconception will necessarily be caused by confounding wholly different "A municipal corporation is the represent-powers and from supposing that, because a ative of the state, and one of the instru-particular result is justified where a specimentalities of the state government. It was tied power exists, the same consequence must long ago determined that the property and obtain where the power upon which it derevenues of municipal corporations are not subjects of Federal taxation. The Collector v. Day, 11 Wall. 113, 124, sub nom. Buffing ton v. Day, 20 L. ed. 122, 126; United States

pends is wanting. Certainly, I assume, it cannot be said because a state has the right to regulate successions and, therefore, to prevent property from passing by death to

This conclusion was absolutely essential

If the

the United States, hence, also, the United | recipient, and not upon the power of the States must have power, by regulating suc- state to regulate." cessions, to prevent property from passing by death to a state or its governmental agen-to the construction of the statute which was cies. And yet, in my opinion, this is the sustained in Knowlton v. Moore. I do not logical consequence of the doctrine that be- perceive how it can be now held that the cause the states may, in virtue of an author- tax is valid because it is on the estate in ity belonging to them, accomplish a particu- the hands of the executor and not a burden lar result as regards the United States, on the recipient, when the case of Knowlton therefore the United States must have the v. Moore, which explicitly holds to the conright to bring about the same thing as to trary, is expressly approved. It is, however, the states. The United States not possess-suggested that the tax is only incidentally ing, as the states do, the right to regulate on the right of the corporation to receive, successions, when the United States calls in- and therefore is valid. If "incidentally" is to play its taxing power over the subject of intended to refer to the subject upon which the passage or receipt of property by death, the tax is levied, then the proposition, in the extent of its authority is to be measured my opinion, only reiterates the misconcep-[259] solely by the scope of the taxing power con- tion to which attention has been previously ferred by the Constitution. When, on the called, and it, besides, conflicts with the concontrary, the state imposes a burden upon ceded premise that the question for decision the passage or receipt of property by death, is whether a tax can be validly imposed on its right to do so, if not sustainable by the the right of a municipal corporation to take exercise of the taxing power, finds ade-a legacy. Such cannot be the question if quate support in the authority vested in it there is no such question in the case. to regulate the transmission or receipt of term "incidentally" conveys the thought that property on the occasion of death. This was the tax is only indirectly on the corporaclearly pointed out in United States v. Per- tion's right to take the bequest, and therekins, 163 U. S. 630, 41 L. ed. 289, 16 Sup. Ct. fore it may be lawfully imposed, the docRep. 1075, where it was said: "The legacy trine overthrows the rule announced by becomes the property of the United States Chief Justice Marshall in M'Culloch v. Maryonly after it has suffered a diminution to land, 4 Wheat. 316, 4 L. ed. 579, and reiter[258]the amount of the tax, and it is only upon ated in numberless cases since that decision, this condition that the legislature assents to the effect that where there is a want of to a bequest of it." Nor do I see the force constitutional power to tax a particular obof the suggestion that, as the tax in question ject, neither a direct nor an indirect tax can is imposed upon the property in the hands be imposed since the power to tax is the of the executor before payment and distri-power to destroy. It to me seems that the bution to the legatees, it, therefore, cannot tax here in question bears more directly upbe regarded as tax upon the right of the on the right of the corporation to take the municipality to receive the legacy. It was bequest than did the tax which was conheld, after great deliberation, in Knowlton demned in M'Culloch v. Maryland. Assurv. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. edly, the inclusion, in income subject to taxCt. Rep. 747, that the inheritance taxes levation, of an amount derived from interest ied by the act of Congress were not imposed on municipal bonds, is less directly on the on the estate of the decedent, but were laid bonds than is the tax in this case on the on the passing of the legacies, and on noth-right of the municipality to take; and yet, ing else. It cannot be the intention now to bring about the confusion which must arise from overthrowing this settled doctrine, since it is conceded that the only question for decision is the right of Congress to impose a succession tax upon the bequest to a municipal corporation, for a public purpose. It being admitted that such is the question for decision, I do not perceive how that question can be solved by saying that the tax is not on the passing of the bequest to the municipality, but is imposed on the estate

in the hands of the executor before the municipality receives its legacy. It was not only directly held in Knowlton v. Moore that the tax was on the transmission or the receipt of the legacy occasioned by death, and was therefore not on the property, not on the estate, not on the executor, but that it was also held to be a burden imposed on the recipient. The court said (p. 60, L. ed. p. 977. Sup. Ct. Rep. p. 755) :

as I have said, in Pollock v. Farmers' Loan & T. Co. the tax on an income made up in part of interest on a municipal bond was declared to be void, because, even if indirect, it could not be levied where there was no power to tax at all. The distinction was pointed out in Knowlton v. Moore, where, in referring to the statement of Mr. Chief Justice Marshall in M'Culloch v. Maryland, that the power to tax involves the power to destroy, it was said (p. 60, L. ed. p. 977, Sup. Ct. Rep. p. 755) :

"This principle is pertinent only when there is no power to tax a particular subject. In other words, the power to destroy, which may be the consequence of taxation, is a reason why the right to tax should be confined to subjects which may be lawfully embraced therein, even although it happens that, in some particular instance, no great harm may be caused by the exercise of the taxing authority as to a subject which beyond its scope."

"Certainly, a tax placed upon an inheri-is tance or legacy diminishes, to the extent of the tax, the value of the right to inherit or receive, but this is a burden cast upon the

To my mind, no doctrine more dangerous and more subversive of a long line of settled authority in this court could be an

[260]nounced *than the statement that, although | from January to October, 1859, by Phillips, there is no power whatever to tax a par- Sampson, & Co. without copyright protecticular object, the courts will nevertheless tion. The remaining two numbers for the maintain a tax if it only indirectly puts a burden on the forbidden object, or that the tax may be sustained because, in the judgment of a court, the degree in which the Constitution has been violated is not great. Constitutional restrictions are, in my opinion, imperative, and ought not to be disregarded because, in a particular case, it may be the judgment of a court that the violation is not a very grievous one.

Copyright-sufficiency of notice-entry in
author's name of prior publication in
copyrighted magazine.

Any copyright protection for a work secured,
under the act of February 3, 1831 (4 Stat. at
L. 436, chap. 16), by entering for copyright
in the name of the publishers the issues of a

magazine which contain instalments thereof,
is lost by the subsequent publication of the

work in book form with no other notice of
copyright than that of an entry in the au-
thor's name.

[No. 268.]

months of November and December, 1859, were entered for copyright by Ticknor & Fields, whose copyright purported to cover the entire magazine. After its publication serially had been completed, Dr. Holmes published the entire work in one volume, containing a proper notice of copyright.

Upon this state of facts the circuit court dismissed the bill (107 Fed. 708), and, upon appeal to the circuit court of appeals, that court affirmed the decree. 50 C. C. A. 661, 112 Fed. 1004.

Messrs. Samuel J. Elder and Edmund

. Whitman argued the cause and filed a brief for appellants:

requirement of notice have never held a

The decisions in the United States on the

copyright bad unless some essential element has been wholly omitted, or such notice is misleading.

Bleistein v. Donaldson Lithographing Co. 188 U. S. 239, ante, 460, 23 Sup. Ct. Rep. 298; Scribner v. Henry G. Allen Co. 49 Fed. 854; Scribner v. Clark, 50 Fed. 473, 144 U. S. 488, 36 L. ed. 514, 12 Sup. Ct. Rep. 734; Werckmeister v. Springer Lithographing Co. 63 Fed. 808; Sarony v. BurrowGiles Lithographic Co. 17 Fed. 591.

Many informalities in such notices have been sustained so long as they contained all the elements, and did not mislead, and the statute had been substantially complied

with.

Snow v. Mast, 65 Fed. 995; Falk v. Scha
macher, 48 Fed. 222; Hefel v. Whitely Land
Co. 54 Fed. 179; Bolles v. Outing Co. 46
L. R. A. 712, 23 C. C. A. 594, 77 Fed. 966.

The true test of the sufficiency of a copy-
right notice is its likelihood to mislead.
L. ed. 547, 9 Sup. Ct. Rep. 177.
Callaghan v. Myers, 128 U. S. 617, 32

Another test is whether the statute has been substantially complied with.

Myers v. Callaghan, 10 Biss. 139, 5 Fed. 726; Dwight v. Appleton, 1 N. Y. Legal Obs.

Argued April 30, May 1, 1903. Decided 195, Fed. Cas. No. 4,215.

June 1, 1903.

The magazine notice is distributive and carries entire protection for each contribu

APPEAL from the United States Circuit tor, although not specially named in the

Court of Appeals for the First Circuit to review a decree which affirmed a decree of the Circuit Court for the District of Massachusetts dismissing a bill in equity for violation of a copyright. Affirmed.

See same case below, 50 C. C. A. 661, 112
Fed. 1004.

Statement by Mr. Justice Brown:

This was a bill in equity by the firm of Houghton, Mifflin, & Co., as assignees of the [261]late Oliver Wendell Holmes, against the R. H. White Company, for a violation of the copyright upon "The Professor at the Breakfast Table." The work was published serially during the year 1859, in the Atlantic Monthly Magazine, at first by Phillips, Sampson, & Co., and later by the firm of Ticknor & Fields. The first ten parts were published

notice.

The relation between author and publisher is so close as to constitute such an identity of interest that notice in the name of the publisher is equivalent to notice in the name of the author.

Hole v. Bradbury, L. R. 12 Ch, Div. 886; Stevens v. Benning, 1 Kay & J. 168; Gibson v. Carruthers, 8 Mees. & W. 343.

The law secures copyright to the author alone, and it belongs to him, although regis tered in the name of his publisher.

1 Curtis, Hist. of U. S. Const. p. 532; Curtis, Copyright, pp. 77-79; Black v. Henry G. Allen Co. 56 Fed. 764; Pulte v. Derby, 5 McLean, 328, Fed. Cas. No. 11,465; Laurence v. Dana, 4 Cliff. 1, Fed. Cas. No. 8,136; Drone, Copyright, pp. 260, 368. Where copyright is registered in the pub

lisher's name, the courts treat the author | title never changes, while its contents are alas the real owner and allow suits by him ways changing. There can be no copyright for protection of his copyright. in a magazine title.

in Holmes v. Hurst, 174 U. S. 82, 43 L. ed. [each article therein appearing, but for their 904. 19 Sup. Ct. Rep. 606, wherein we held own protection, and to prevent the republithat the appearance of a work in a maga-cation of the December number of the Atlanzine, by consent of the author, was such a tie Monthly. While, without further expublication as vitiated the copyright, underplanation, it might, perhaps, be inferred $ 4 of the copyright act of 1831. 4 Stat. at that the author of a book who places it in L. 436, chap. 16. the hands of publishers for publication, The question presented by this case is might be presumed to intend to authorize whether entering for copyright the last two them to obtain a copyright in their own parts of "The Professor at the Breakfast Ta- names (Pulte v. Derby, 5 McLean, 328, Fed. ble" in the December number of 1859 of the Cas. No. 11,465; Belford, C. & Co. v. ScribAtlantic Monthly by Ticknor & Fields, pro-ner, 144 U. S. 488, 504, 36 L. ed. 514, 519, prietors of the magazine, was sufficient to 12 Sup. Ct. Rep. 734), it is apparent that save the rights of the author, the plaintiff there was no such intention in this case, in262] *having purchased such rights from the ex-asmuch as, almost immediately after the pubecutor of the late Dr. Holmes. lication of the December number of the magazine, Dr. Holmes himself entered the book, under its correct title, for copyright. That and the ex-right was never assigned until 1895, when it was turned over to the plaintiffs by the executor of the author. Had the copyright been entered by Ticknor & Fields, as agents of Dr. Holmes, it is possible it might have been sustained, but there is nothing to indicate that Ticknor & Fields were acting for anyone else than themselves; and there is nothing to show that Dr. Holmes ever assented to their copyrighting his work. It is impossible to see how the copyright subsequently obtained by Dr. Holmes can derive any additional support from the fact that Ticknor & Fields chose to copyright the final chapters of the work in the Atlantic Monthly, since there is nothing to indicate that he even knew that any such proceedings were contemplated, much less that he authorized it.

By § 1 of the act of February 3, 1831, "the author or authors of any book or books not printed and published, ecutors, administrators, or legal assigns of such person or persons, shall have the sole right and liberty of printing," etc. By § 4, "no person shall be entitled to the benefit of this act, unless he shall, before publication, deposit a printed copy of the title of such book in the clerk's office of the district court of the district wherein the author or proprietor shall reside," when the clerk is directed to make a record of the same, in a form prescribed, wherein is stated the date, the name of the author or proprie tor, etc.; and, by § 5, the person entitled to the benefit of the act shall give information of his copyright, by giving notice on the title page, or page immediately following, in a prescribed form. Construing these statutes together, it would seem that the word "proprietor," in the 4th section, must practically have the same meaning as "legal assigns," in the 1st section, and was designed to give to the legal assignee of any author or authors the right to take out the copyright in his

own name.

But, even assuming that it was done by his authority, there is an additional question whether the entry of a book called the "Atlantic Monthly Magazine," in the name of Ticknor & Fields, is equivalent to entering a book called "The Professor at the Breakfast Table," by Oliver Wendell Holmes. The two entries were in the following form:

1. Entry of the Atlantic Monthly for the month of December, 1859: "Entered according to act of Congress in the year 1859, by Ticknor & Fields in the clerk's office of the district court of the district of Massachu

There is no evidence in this case, how ever, that Dr. Holmes, the author of "The Professor at the Breakfast Table," ever assigned to either of the proprietors of the magazine the authority to copyright his work. While there is an allegation in the bill, upon information and belief, that the work-the first ten parts of which were pub-setts." lished by Phillips, Sampson, & Co.-was 2. Entry of "The Professor at the Breakprinted, published, and sold by said Phillips, fast Table:" "Entered according to act of Sampson, & Co. "by and with the consent Congress in the year 1859, by Oliver *Wen-[264] and authority of the said Oliver Wendell dell Holmes, in the clerk's office of the disHolmes, and in accordance with an agree-trict court of the district of Massachusetts.” ment" made with him by the said firm, The object of the notice being to warn the whereby he granted to them the right to print, publish, and sell his work in the said magazine, there is no allegation that either Phillips, Sampson, & Co. or their successors, Ticknor & Fields, were authorized to enter "The Professor at the Breakfast Table" for copyright, either in their own names, or in the name of the author; nor does there appear to be any connection whatever between the copyright taken out by Ticknor & Fields and that subsequently taken out by Dr. [263] Holmes. *The entry of the Atlantic Monthly

by Ticknor & Fields was evidently not intended for the protection of the author of

public against the republication of a certain book by a certain author or proprietor, it is difficult to see how a person reading either of these notices would understand that they were intended for the protection of the same work. On their face they would seem to be designed for an entirely different purpose. While, owing to the great reputation of the work and the fame of its author, we might infer in this particular case that no publisher was actually led to believe that the book copyrighted by Dr. Holmes was not the same work which had appeared in the Atlantic Monthly, that would be an unsafe cri