A book, in the law of copyright, means every volume, *257 ai or * part or division of a volume, a pamphlet, a sheet of letter-press, or of music, or a map, chart, or plan separately published. () A man cannot copyright a map of London and thereby prohibit every one from making a map of London. No one can copy his map; but any one may make and publish another map of the same place. (k) What may constitute an infringement of a dramatic performance is considered in an interesting case in New York. (kk)

If there be many volumes, it is enough if the copyright be inserted on the page following the title-page of the first volume. (1) A newspaper, or price-current, (m) or a label of an article offered for sale, (n) cannot have a copyright.

The statute gives the right to a copyright, to the "author, inventor, designer, or proprietor. What is necessary to constitute an "author" is a question of some difficulty. It is perhaps impossible to determine this by an exact and adequate definition. If he uses only old materials in an old way, if he compiles his books from other books without the addition of anything new from his own mind, he certainly is not an author. One may make a scrapbook by pasting on the blank leaves of a book interesting articles cut from newspapers; and such a volume might, if *257 aj printed, have a certain * attractiveness and value; but it

ance can recollect it; and that the spectators have no right to cause its reproduction by phonographic or other verbatim reports, independent of memory." Both in this case and in Keene v. Wheatley, supra, it was held that where the defendant's performance was from copies surreptitiously obtained, an injunction would be granted. So also Boucicault v. Wood, 16 Am. Law Reg. 539.

(j) Clementi v. Goulding, 11 East, 244, 2 Camp. 25; Hime v. Dale, 2 Camp. 27.; Bach v. Longman, Cowp. 523; University of Cambridge v. Bryer, 16 East, 317; White v. Geroch, 2 B. & Ald. 298, 1 Chitty, 24; Clayton v. Stone, 2 Paine, 383; Keene v. Wheatley, 9 Am. Law Reg. 68.

(k) A man has a right to the copyright of a map of a State or country which he has surveyed or caused to be compiled from existing materials, at his own expense or skill or labor or money. Another man may publish another map of the same State or country, by using the like materials, and the like skill or labor or expense. But, then, he has no right to publish a map taken substantially and designedly from the map of the other per

son, without any such exercise of skill, labor, or expense. If he copies substantially from the map of another, it is downright piracy." Per Story, J., in Emerson v. Davies, 3 Story, 768. See also Blount v. Patten, 2 Paine, 397; Smith e. Johnson, 4 Blatchf. 252; Sayre v. Moore, 1 East, 361; Kelly v. Morris, Law Rep. 1 Eq. 252; Wilkins v. Aiken, 17 Ves. 422.

(kk) In Daly v. Palmer, 6 Blatchf. 256, it is held, that there is an infringement, if the copyrighted series of events, when represented on the stage, although by new and different characters, using different language, conveys substantially the same impressions to, and causes the same emotions in the mind, in the same order as the original. But this does not extend to mere spectacles or scenic arrangements, without literary character; nor to a mere exhibition, spectacle, or scene; nor to any composition of an immoral or indecent character.

(1) Dwight v. Appletons, 1 N. Y. Legal Observer, 198.

(m) Clayton r. Stone, 2 Paine, 382.

(n) Coffeen v. Brunton, 4 McLean, 517; Scoville r. Tolland, 6 West. L. J. 84; Higgins v. Keuffel, 140 U. S. 428.

And

would not be easy to regard the maker as an author. yet a mere commonplace book-like Southey's, for example,consisting wholly of extracts, might be entitled to copyright, on the ground of the care and labor or skill which had made so valuable a collection.

It is certain that the plan or system of a book, and the classification and arrangement of the topics, are embraced among the things covered and protected by the copyright of the book. (0) It may be possible for an author who uses nothing but what may be found in print elsewhere, to found a *257 ak copyright upon the use he makes of his materials; but

it is difficult to imagine how he can do this if the volume contains no product of his own thought, and nothing which has not been thought and said before. We shall recur to this topic when

(2) Thus, in Greene v. Bishop, 1 Clif. 199, Clifford, J., says: "The author of a book who takes existing materials from sources common to all writers, and arranges and combines them in a new form, is protected in the exclusive enjoyment of what he has thus collected and produced; for the reason that he has exercised selection, arrangement, and combination, and thereby has produced something that is new and valuable." So, in Emerson v. Davies, 3 Story, 768, Story, J., says: "The question is not whether the materials which are used are entirely new, and have never been used before; or even that they have never before been used for the same purpose. The true question is whether the same plan, arrangement, and combination of materials have been used before for the same purpose, or for any other purpose. If they have not, then the plaintiff is entitled to a copyright, although he may have gathered hints for his plan and arrangement from existing and known sources. He may have borrowed much of his material from others; but if they are combined in a different manner from what was in use before, and, a fortior, if his plan and arrangement are real improvements upon the existing modes, he is entitled to a copyright in the book embodying such improvements. It is true he does not thereby acquire the right to appropriate to himself the materials which were common to all persons before, so as to exclude those persons from a future use of such materials; but, then, they have no right to use such materials with his improvements superadded, whether they consist

in plan, arrangement, or illustrations, or combinations, for these are strictly his own." So, in Atwill v. Ferritt, 1 Blatchf. 39, Betts, J., says: "To constitute one an author, he must, by his own intellectual labor applied to the material of his composition, produce an arrangement or compilation new in itself."

Thus, copyrights have been supported for a grammar, Gray v. Russell, Story, 11; Greene v. Bishop, supra; an arith metic, Emerson v Davies, supra; a roadbook, giving an enumeration of highways and the distances from place to place, Cary v. Longman, 1 East, 357; a topographical dictionary, Lewis v. Fullarton, 2 Beav. 6; a court calendar, Longman v. Winchester, 16 Ves. 269; a directory, Kelly v. Morris, Law Rep. 1 Eq. 697; Morris v. Ashbee, Law Rep. 7 Eq. 34; Matthewson v. Stockdale, 12 Ves. 270; a series of mathematical tables, Bayley v. Taylor, 1 Russ. & My. 73; a chronology, Trusler v. Murray, 1 East, 362 n; a collection of statistics, Scott v. Stanford, Law Rep. 3 Eq. 718; and even a catalogue, unless it be a mere list of dry names, Holten v. Arthur, 1 H. & M. 603, 32 L. J. Ch. 771. See also Jarrold v. Houlston, 3 K. & J. 708; Hogg v. Kirby, 8 Ves. 215; Barfield v. Nicholson, 2 Sim. & St. 1; Carnan . Bowles, 2 Bro. Ch. 80; Webb v. Powers, 2 Wood. & M. 497; Story v. Holcombe, 4 McLean, 306.

So it has been held, that where a person had adapted words of his own to an old air and added a prelude and accompaniment he was entitled to a copyright for the entire combination. Lover v. Davidson, 1 C. B. (N. s.) 182.

considering what is an infringement of the right secured by a copyright.

Letters may be the subject of copyright; but the right of publication belongs to the writer and his representatives, and not to the receiver, who has at most only a special property in them. (p) For a distinction between literary letters and business or personal letters, see our note.

As the law cannot be called upon to enforce or protect rights founded upon a violation of law, no copyright is valid for a book of which the character and purpose are immoral, (q) or blasphemous, (r) or treasonable, (s) or otherwise illegal, or where the work is in any way a fraud upon the public. (ss) But *257 al the English cases have gone farther in the refusal to protect copyrights for these causes, than any cases in

(p) Pope v. Carl, 2 Atk. 342; Millar v. Taylor, 4 Burr. 2303; Oliver v. Oliver, 11 C. B. (N. s.) 139; Palin v. Gathercole, 1 Coll. 565; Thompson v. Stanhope, Ambl. 737; Earl of Granard v. Dunkin, 1 Ball & Beatty, 207; Gee . Pritchard, 2 Swanst. 403; Folsom v. Marsh, 2 Story, 100; Woolsey v. Judd, 4 Duer, 379. A distinc tion was drawn, in Perceval v. Phipps, 2 V. & B. 19, between letters having the characteristics of literary productions and those of a merely personal or business nature; and it was held that the publication of the latter would not be restrained upon the ground of there being a right of property in them, but only when such publication would be a breach of confidence. The correctness of this distinction was doubted by Lord Eldon, in Gee . Pritchard, supra, and it is not supported by the subsequent English authorities. In New York it was approved in Wetmore v. Scovill, 3 Edw. Ch. 515, and in Hoyt v. McKenzie, 3 Barb. Ch. 320; but it was afterwards rejected in the same State, in Woolsey v. Judd, 4 Duer, 379. It was rejected also in Folsom v. Marsh, 2 Story, 100, by Story, J., who held that, "the author of any letter or letters, or his representatives, whether they are literary compositions, or familiar letters, or letters of business, possess the sole and exclusive copyright therein; and no persons, neither those to whom they are ad

*

dressed, nor other persons, have any right or authority to publish the same upon their own account or for their own benefit. But, consistently with this right, the persons to whom they are addressed may have, nay, must by implication possess, the right to publish any letter or letters addressed to them upon such occasions as require or justify the publication or public use of them, but this right is strictly limited to those occasions." That the receiver may use letters for the pur pose of justification or defence, see also Perceval v Phipps, 2 V. & B. 19; Gee v. Pritchard, 2 Swanst. 403.

(q) Stockdale e. Onwhyn, 5 B. & C. 173; 7 D. & R. 625; 2 C. & P. 163. And see Fores v. Johnes, 4 Esp. 97; Hime e. Dale, 2 Camp. 28; Southey . Sherwood, 2 Meriv. 435.

(r) Lawrence v. Smith, 1 Jac. 471; Murray v. Benbow, 1 Jac. 474; Burnett v. Chetwood, 2 Meriv. 441; Cowan v. Milbourn, Law Rep. 2 Exch. 230.

(s) Priestley's case, cited 2 Meriv. 437. (ss) As where a devotional work professed to be a translation from the Ĝerman of Sturm, a celebrated writer on religious subjects, and it appeared that no such work was ever written by Sturm, it was held that the fraud invalidated the copyright. Wright v. Tallis, 1 C. B. 893, 9 Jur. 946. See also Hogg v. Kirby, 8 Ves. 215; Seeley v. Fisher, 11 Sim. 581.

1 The reporter of law reports may copyright them, and the copyright will protect everything contained in them except the opinions of the judges, though the reporter is a court official receiving a salary. Callaghan . Myers, 128 U. S. 617. But the state cannot secure a copyright on the opinions of the judges. Banks v. Manchester, 128 U. S. 244; Banks v. West Pub. Co. 27 Fed. Rep. 50. Contra, Gould v. Banks, 53 Conn. 415.

this country, and we think, farther than the courts of England

would now go.

It is now settled that the decisions of courts cannot be the subject of copyright although the reporter may protect his own abstracts of cases or arguments. (t) We should say he might protect reports, prepared by him, in his own words, of the judgments rendered by judges. (u)

SECTION II.

OF ASSIGNMENT.

A copyright is a vested interest which a holder may assign, in whole or in part, 1 for such consideration and upon such terms as he pleases. But any assignment or transfer should be recorded in the office of the Librarian of Congress, as otherwise it will have no force or effect against a subsequent purchaser for a valuable consideration without notice. (v) * It has * 257 am been held that an assignment of a copyright for a limited locality operates at law as a mere license; although, if made for a valuable consideration, it will be carried into effect in equity; (vv) and that the author's right to his unpublished manuscript may be assigned so as to give the assignee the exclusive right of taking

(t) Wheaton v. Peters, 8 Pet. 593. In this case the Supreme Court of the United States say: "The court are unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right." But no doubt was expressed as to the plaintiff's right to the marginal notes and abstracts of arguments prepared by him, and the case was remanded for the purpose of trying the question whether he had complied with the requisitions of the statute. See Judge Story's remarks on this case in Gray v. Russell, 1 Story, 11. In Sweet v. Benning, 16 C. B. 459, the plaintiffs were the proprietors of the "Jurist," in which were published the decisions of the courts spe

cially reported for them, and accompanied by the usual marginal notes and abstracts of the arguments. The defendant, having copied these notes and abstracts into his publication, the "Monthly Digest," was held to have invaded the plaintiff's copy. right. See also Little v. Gould, 2 Blatchf. 165, affirmed in 18 How. 165.

(u) So held in Butterworth v. Robinson, 5 Ves. 709; Sweet . Maugham, 11 Sim. 51; Saunders ». Smith, 3 My. & Cr. 711; and see Sweet v. Benning, 16 C. B. 459.

(v) Rev. Stat. § 4955.

(vv) Keene v. Wheatley, 9 Am. Law Rep. 46; Roberts v. Myers, 13 Law Rep. 401. Under the English statute there can be no partial assignment. Jefferys v. Boosey, 4 H. L. C. 815.

1 An assignment of an undivided part of a copyright is valid. Black v. Henry G. Allen Co. 42 Fed. Rep. 618. And as between the parties a parol assignment is effectual. Callaghan v. Myers, 128 U. S. 617.

out a copyright; and, as this assignment is not regulated by statute, it may be by parol. (vw) And in a recent case it was held, that where one agreed to furnish gratuitously notes and comments for two new editions of a copyrighted book, the right to copyright these editions with these notes and comments vested at once in the owners of the original work. (vx)

Where an artist was employed by the government on an exploring expedition, with an understanding that all his drawings made in this capacity were to be the property of the government, it was held that he could have no copyright in them. (vy) But it was held that one employed to write a play to be performed at a particular theatre might have a copyright; and the proprietor of the theatre had no other right than that of having the play performed at his theatre. (v2)

Much question has arisen as to whether a general assignment of a copyright carries with it the right to the extension of *257 an fourteen years provided by section [4954.] (w) The *conclusion would seem to be, that the intent of this extension regarded the author and his family, rather than his assignees; and that the taking out this second term is obtaining a new title or interest, rather than confirming or completing a former one; (x) but that it is in the power of the author to transfer this

(vw) Pulte v. Derby, 5 McLean, 528. (vx) In his opinion, Clifford, J., said: "The complainant gave the contributions to the proprietor for those two editions of the work; and the title to the same vested in the proprietor, as the work was done, to the extent of the gift, and subject to the trust in favor of the donor, as necessarily implied in the terms of the arrangement. Delivery was made as the work was done; and the proprietor of the book needed no other muniment of title than what was acquired when the agreement was executed. Vested as the prop erty of the contributions was in Mrs. W. (the proprietor of the work), she could not acquire anything by an assignment from the contributor, as he had neither the immediate title to the contributions nor any inchoate right of copyright in those editions." Lawrence v. Dana, C. C. U. S. Mass. Dist. 1869. See also Little v. Gould, 2 Blatchf. 362; Atwill v. Ferritt, 2 Blatchf. 46; Hatton v. Kean, 7 C. B. (N. S.) 267.

(vy) Heine v. Appletons, 4 Blatchf. 125; Siebert's case, 7 Op. Att. Gen. 656.

(vz) Roberts v. Myers, 23 Law Rep. 396; Boucicault v. Fox, 5 Blatchf. 87; Crowe v. Aikin, 4 Am. Law Rev. 450; Shepherd v. Conquest, 17 C. B. 427.

(w) Act 1870, § 88: "The author, inventor, or designer, if he be still living, and a citizen of the United States, or resident therein, or his widow or children, if he be dead, shall have the exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term. And such persons shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States, for the space of four weeks."

(x) Pierpont v. Fowle, 2 Wood. & M. 42. Says Woodbury, J.: “The copyright is given in the statute to the author alone, and to others only who purchase from him. By construction, then, we should not extend it beyond the words and design of the statute made to benefit authors, unless it seems to be actually meant by the author to be transferred forever, and including any future contingency, and a clear and adequate consideration paid for the extended term." In this case, a publisher agreed with an author that the lat