PROGRESS OF COPYRIGHT LAW.
BENJAMIN VAUGHAN ABBOTT.
WHATEVER progress has been made in the law of copyright, during the past year or two, is seen in decisions of courts. In the realm of legislation no positive progress has occurred. A project of a general revision of the English enactments, which has been several years in preparation under parliamentary authority, has been fully completed and submitted for debate and enactment; and a very interesting and important negotiation for an international treaty has been carried far toward successful completion. But no actual results are yet achieved by either of these efforts to improve the law.
What literary compositions may be secured by copyright ? The claim of a “law-reporter” has been sustained. For more than a century it has been customary to publish reports of the decisions of courts, in form somewhat peculiar and characteristic. The main thing to be given is, of course, the opinion of the court ; and this, by general opinion, can not be copyrighted in the reporter’s behalf ; it is the official work of the judge, and is public property ; or, at the least, it is not the reporter’s property ; whether the government employing and paying a judge can, by copyrighting reports, maintain a literary property in his official opinions, is a question not yet decided. But a report contains matters auxiliary to the “ opinion,” the preparation of which involves much literary labor and skill ; such as a “ syllabus ” of the case, or brief statement of the points of law decided ; a narrative of the facts involved in the trial ; a condensed statement of the arguments ; and, perhaps, a foot-note collating other decisions germane to the subject. A majority of existing law reports have been compiled by the reporters in the expectation of taking out a copyright and realizing a profit upon sales. The practice of paying a reporter a salary, now very common, is of recent introduction. Lately complaint was made on behalf of an official law-reporter who had no distinct salary, but compiled the reports relying on the copyright as his compensation, that a rival publishing firm were issuing a condensed edition. The publishers argued that the reporter’s work was official, and not a subject of copyright. The judge said he thought an officer enjoying a salary for his work probably ought not to claim a copyright, but one who worked for the copyright as his compensation ought to be sustained in it. The publishers also showed that they had instructed their editors to draft new head-notes and narratives of facts. The judge said he could scarcely see how new editors could in fact compile these parts anew unless they consulted the original records. It was not shown that they had done this ; moreover, the judge’s comparison of the two books led him to think that the editors had in fact used the reporter’s work to a considerable extent. The decision was in favor of the reporter’s claim. It is noteworthy that a decision rendered half a dozen years ago, though published recently, declared that a reporter could not claim copyright in head-notes furnished to him by the judges as part of their official duty.
Upon the death of Lord Beaconsfield, the London “ Times ” published an elaborate memoir. Some one reprinted it in a penny pamphlet. Of this the proprietor of the “ Times ” complained ; but the publisher of the pamphlet said that he had the right to issue it because the “ Times ” was not copyrighted. Now, the copyright laws do not mention newspapers by that name ; they allow copyrighting “ books ” ; when newspapers are copyrighted, it is done upon the idea that the term “ book,” liberally understood, includes a newspaper. For the proprietor of the “ Times ” it was argued that a newspaper like the “ Times ” is not a proper subject of copyright ; and that, there being no copyright law available for articles in newspapers, the publisher has “ a common-law right ”—a natural property, independent of statute—by virtue of which he can forbid any one else from reprinting them. There is said to be a former English decision to this effect. But the judge decided, in respect to the Beaconsfield memoir, that the “ Times ” newspaper can be copyrighted, and that it should have been, in order to sustain the claim made. He sanctioned the little pamphlet.
Many of our readers know the two books “ Monitor Post-Office, etc., Guide,” and Mackey’s “ Shippers’ Guide.” The proprietor of the “ Monitor Guide ” sued Mr. Mackey for violation of copyright. The judge said that such guide-books are a proper subject of copyright ; but that the right was not so broad and full as the plaintiff claimed ; it did not forbid Mackey from collecting similar information to that given in the “ Monitor Guide,” about post-office, railroad, express, and telegraph business, or from arranging and exhibiting it in much the same general ways, but only from copying material portions of the “ Monitor Guide.”
Recent decisions on the question whether books designed to be used in a ^wcm-mechanical way—ruled account-books, bond-registers, and the like—should be copyrighted or patented, were narrated in an article in the July number. Nothing new on that topic has transpired, except that a patent has just been sustained for an improved “ checkbook.”
Does the copyright law sustain property in the mere title of a book ? The tendency of thought is that the law of trade-marks affords such protection as there is for a title, as distinguished from the body or contents ; that the purpose of the copyright law is to secure the exclusive right of publishing the substantial work, and that it protects the title only as being a part of the work. But it can not be said that this has been sharply decided. When the directory for London was established, which was about seventy years ago, the necessary information was gathered or furnished by post-office clerks ; hence the book was called, naturally enough, the “Post-Office Directory.” In later years the post-office aid was discontinued ; the proprietor of the enterprise' continued, however, to issue the book annually, on information gathered by his own canvassers. He adhered to the familiar title, registering the successive volumes, under the copyright laws, as “ Post-Office Directories.” At length a rival commenced a directory for Bradford, which lay within one of the districts covered by one of the issues of the old directory ; and this rival called his work also “ Post-Office Directory.” He has been sued ; but both courts held that he was not violating copyright ; nor, indeed, the trade-mark law.
Miss Braddon wrote a novel to which she gave the name “Splendid Misery,” and sold it to the London journal called “The World,” conducted by Mr. Edmund Yates ; and “The World ” began publishing it as a serial story. This occurred in 1879. Before long the proprietor of “ Once a Week ” entered a complaint, saying that in 1874 he had purchased and published in his paper a novel by C. II. Hazlewood (which had been duly copyrighted), also under the title “Splendid Misery.” He did not suggest that Miss Braddon’s story imitated Mr. Hazlewood’s ; the only question was whether he had an exclusive right to the title, by virtue of the copjo-ight law. The vice-chancellor thought his claim good ; and, indeed, there is an earlier decision to much the same effect. But Miss Braddon’s publisher learned that, as long ago as 1801, a novel written by still another author had been published under the same title—“Splendid Misery.” Partly on the ground that this publication had rendered the title common property, so that now any one may use it, the Court of Appeal decided in favor of Miss Braddon’s publisher. Apparently, however, the judges consider the general English law to be : 1. A title has no special protection by the copyright law ; that protects it only as any other part of the book ; 2. Another person who uses the same title only, without either imitating the book or deceiving the public, can not be stopped by a copyright suit ; 3. Appropriating a title under circumstances which show an intention to attract people to buy the book under the supposition that they are getting another well-known one— as, if one should publish an anonymous, inferior story under the title “Vanity Fair,” for the purpose of leading buyers to think it was the celebrated story by Thackeray—is a fraud on the public, which may be published or stopped, independent of copyright law. But the question of holding a title by force of the copyright law should, perhaps, be deemed an open one in England ; two vice-chancellors have decided that it may be ; but the judges of the Court of Appeal have said that they do not think so ; this was said, however, in a case in which the facts did not enable them to make an authoritative decision.
In America, when the copyright of “Irving’s Works” expired, recently, a rival publisher issued a volume of selections, using the same title—“ Irving’s Works.” The former publisher, though he could not complain of the publication of the substance of the volume, did bring his suit to forbid using the title ; it was, as he claimed, his trademark. But the judge said that the public were not misled ; the selections comprised in the book were genuine writings of Washington Irving ; and, now that any one may publish Irving’s writings, he has the right to style them “Irving’s Works.”
There has been a decision on a matter very germane to copyright, the affixing of an author’s name to a book. The story of the plaintiff, who was an American publisher, was, that he devised a new plan for compiling illustrated guide-books to towns, according to wffiich a Mr. Kenny prepared several such books relating to towns in America. They were known as “Kenny’s Guide-Books.” Subsequently the publisher agreed with Kenny for the use of the latter’s name upon a guidebook for London ; and he employed Mr. Marsh (against whom the suit was brought) to write the London book. The engagement was on the distinct understanding, so the publisher said, that Marsh’s name would not appear as author. The publisher, however, announced the book as being “ by D. J. Kenny (assisted by John B. Marsh) ” ; but Marsh, then, although he had drawn his pay for preparing the work, withheld the manuscript. The publisher asked the court to compel him to deliver it. The author, Marsh, denied positively that he ever agreed that the book should be published without his name, and said that his reason for withholding the manuscript was, that styling the book on the title-page as being “ by D. J. Kenny ” would be a fraud on the public, since Kenny had taken no part in preparing it. The court decided in favor of the author. This is as much as to say that a writer shall not be compelled to furnish manuscript which he withholds because he knows it will be published under another man’s name in a way to deceive the public ; but whether an author has a legal right to have his own name appear on a book he has sold outright is another question.
Dramatic copyright is a fruitful field of litigation. To protect a play by any legal methods is difficult, and the laws having that aim have not been so distinctly and judiciously framed as they might be. Several suits have been brought, in this country, within the past year or tw'o, to protect noted plays. An English suit, which reached an authoritative decision in the House of Lords, arose upon two rival dramatizations of Eugene Sue’s novel, “The Wandering Jew.” This novel was dramatized in France quite early after its publication, and Englishman number one prepared a play described as an “ adaptation ” of this French play. He, however, introduced two striking scenes : one displaying the wandering Jew strolling in the Arctic regions (real icebergs and a lime-light) and beholding, in a mysteriously managed vision, the future perils and sufferings of his descendants ; the other exhibiting the final triumph over the enemies’ machinations, and introducing the figure of the Jew in the background, under brilliant red lime-light. In the French play, these matters were not scenically repsented, but were described in a prologue and epilogue ; perhaps because the devices of stage carpenters and property men were not sufficient, fifty years ago, for such spectacles. Englishman number two also dramatized the story, independently of and differently from the play by Englishman number one, except that he took from the latter’s play the points of bringing these two matters into actual representation, instead of leaving them to prologue and epilogue. For this he was sued. But the courts, including the House of Lords, held that taking the two scenes was not enough, under the circumstances, to constitute an infringement. Copyright of a play is not infringed unless some substantial, material part—more than a new mode of representing a couple of matters not really essential to the unity of the plot—has been taken.
Another English decision has said that, when two or more persons own together the copyright of an opera or drama, one can not represent it or license a manager to do so, without consent of the others.
In respect to musical compositions, decisions have been made in England upon the right to publish the songs “Kathleen Mavourneen” and “ Dermot Asthore,” and the opera “ Vert-Vert ” ; but they turned on the bargains the parties had made, and do not explain copyright law except that they clearly show musical compositions to be fully entitled to the protection. An odd case occurred in Pennsylvania, which was thus narrated in the “New York Times” : “A publisher copyrighted and brought out an ‘arrangement,’ made by an American musician, of a popular French waltz, christening it ‘ Manola Waltz.’ A competitor republished it with scarcely any changes, and when the first publisher complained, ‘Your waltz is only a copy of mine,’ he answered, ‘Yours is only a copy of the Frenchman’s.’ The judge said that a man need not be an original author—the sole creator of the work ; the first publisher could fairly get a copyright for his arrangement’ ; and the second one had no right to reprint that arrangement, though he might have made a new and ditferent one.”
Pictures have given rise to several decisions. Some manufacturers of earthenware for the Cuban market ornamented their ware with a portrait of the Captain-General of Cuba, surrounded by a wreath ; this portrait was copied from a photograph of the general. Also the father of an attractive young lady had her portrait painted in “ character,” representing her as a young girl walking on the sea-shore, shoeless and stockingless, and carrying a spade and basket ; this picture he copyrighted and had it engraved for publication as “ Going to Work.” Lawsuits were brought to protect these two copyrights. The decisions apparently take the view that a picture of a living person is not a proper subject-matter of copyright ; that the law will not protect a “ design,” the chief element of which is a portrait, while the additions or accessories are but trivial. In a lawsuit over a book “ with illustrations by John Leech,” it appeared that the designs were drawn by Leech himself, upon the blocks ; and he retained the copyright ; the publishers, apparently, however, furnished the wood ; and, when a controversy arose, they made the law point that, though the designs possibly belonged to Leech, the blocks belonged to them (the publishers), and they meant to keep them. The court said that, considering the way in which the parties had dealt, also that the wood was worth next to nothing in comparison with the designs, it was fitting that the publishers should surrender the cuts. In America, a publisher who was sued for violating the copyright of a picture, proved that, in preparing the chromo which he sold, he had not copied from the picture copyrighted in this country, but had followed an English original ; and the court pronounced this a good defense. Copyrighting a picture forbids another person from copying it, but does not forbid copying a picture like it from foreign publications, or designing one anew.
More interesting than either of these is a decision involving the famous picture originally painted by Millais, about thirty years ago, known as “ The Huguenot.” From this painting an engraving was taken, which was duly copyrighted, and has had a wide sale. More lately the publishers of the London magazine “ Bow-Bells,” in a Christmas supplement, issued a chromo-lithograph pattern for Berlin-wool work, embodying this picture. When sued, they said that they bought the pattern in Germany ; they did not, however, dispute that it had been copied from the engraving, but claimed that copyright in an engraving only protects the proprietor from competition of engravings and other prints adapted to be sold and used as engravings are ; that is, as works of art to please the eye. And the Court of Appeal so decided. The purpose of any kind of picture intended to be hung as an ornamental work of art, and that of a mere pattern to be used as a guide for an embroiderer or artisan, are so different that the pattern can not be called a copy of the picture, in the sense that it violates the copyright law.
Recent decisions have not been particularly favorable to maps and charts. In America the compiler of “ insurance maps ” devised a novel system of colors and signs, explained by a key, enabling a person to see at a glance the character of the buildings and other facts about the property important with reference to insuring it. He copyrighted these maps. An imitator prepared maps of Philadelphia on the same plan, and using like colors, signs, and key. The Supreme Court said that this was no infringement. A copyright gives the exclusive right of multiplying copies : to infringe it, a substantial copy of the whole or of a material part must be produced. Now, maps of Philadelphia can not possibly be deemed copies of maps of New York. Scarcely any map is published on which some arbitrary signs explained by a key are not used ; but copyrighting the map does not secure an exclusive right to the signs and key for all other maps. A dealer in zinc paints contrived an advertising card bearing bits of paper painted in colors and serving to exhibit the hues of the paints sold by him ; and this card he copyrighted as a chart. The judge said that it was not a chart, nor the subject of copyright ; and that, if it were, a rival dealer’s similar card using colored papers to show what paints were sold by him would not be an infringement, because it was not a copy of the information conveyed by the first card. A print-dealer contrived pattern-prints of balloons, hanging-baskets, etc., bearing printing as a guide for embroidery, and cutting-lines, showing how the paper might be cut and joined to make the different parts fit together. The judge said that things of this nature are not the subject of copyright.
A recent decision in favor of a lecturer’s right to control publication of addresses which he does not print but retains for repeated oral delivery, is narrated, in an article entitled “ Medical Lectures and the Law of Copyright,” in the “New York Medical Journal” for June last. Rumor says that the question is to be raised again in a suit by Colonel Ingersoll.
London and New York have each a “ Coach-makers’ Journal ” ; and the New York editor copied an article from the London paper. Thereupon the London publishers, finding that a news-agent there was importing and selling copies of the American paper, prosecuted him. lie argued that it was impossible for him to know, when ordering books from America, that they contained English extracts, and that he ought not to be punished for simply importing and selling books in the ordinary way of business. But the decision was, that an importer is bound to ascertain ; or, if he imports without inquiry, he takes the risk that there may be something in the books which he will not be allowed to sell. A more lenient view of a somewhat similar question was taken in an American decision ; it held that a partner or employer is not chargeable with a statute penalty for acts in violation of copyright done without his authority or knowledge by his partner or agent. Some intention to violate the law must be shown, according to this case, to sustain a prosecution.