*257 at book. The

And

cases on this question are numerous. perhaps they agree in nothing else but in making mani

fest the extreme difficulty of the question.

In Mr. Curtis's work on copyright, he seems to favor the conclusion that any abridgment whatever must needs be an infringement. (j) We think the weight of authority and *257 au * of reasoning does not go so far. The test would still be, as in regard to compilation, Has the alleged infringer only made, by a manipulation of the materials of the other, with nothing of his own, a shorter copy of the book? for then it would be an infringement, however dexterous the work; or, Has the later author only made use of thoughts or facts which the earlier author gave to the public, in such wise as to produce, by his own original efforts, a new book of his own? (k)

cases as to quantity." The true rule on this point seems to be that laid down by Story, J., in Folsom v. Marsh, 2 Story, 100; "In short, we must, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work."

(j) Curtis on Copyright, p. 271. "There can be no doubt that the definition of an abridgment given in the anonymous case in Lofft, is correct in a critical sense. That the understanding must be employed in the act of carrying a larger work into a smaller compass, and rendering it less expensive, and more convenient both to the time and use of the reader;' and that when this is done, the person who does it exhibits, according to Lord Hardwicke, his own invention, learning, and judgment,' is obvious. But whether this can be done with any work really original, and actually under the protection of copyright, -whether the property of the original author can be taken, and the taking justified, by any amount of learning, judgment, or invention, shown in the act by him who thus appropriates the property of another, -is the great question which seems to be assumed, and not satisfactorily solved, by these authorities. There are many modes in which the wrongful taker of another's property may exhibit vast talent and ingenuity, and even genius, both in the act of taking and in the use which he makes of it; so that he may really be said to have incorporated with it both his own labor and his own intellectual energy. But the question of original title is still apt inconveniently to recur in such cases. In like

manner, invention, learning, and judg ment, are often shown in the appropriation of the literary labors of others; but the courts have not hesitated, on this account, to ascertain what part of a book, laboring under suspicion, was taken from the complainant; and, if the title of the latter is made out, to grant redress, even to the destruction of all that the piratical author can call his own. In the case of a colorable curtailment of the original work, there may be the exercise of a mental operation, as well as in a professed abridg ment; and if the original author is injured by the latter, as well as by the former, it seems to be a very unsatisfactory answer, in either case, to say that his book has been made, by a mental operation, to wear the appearance of a new work. In both cases, the true inquiry is, has anything been taken which belongs to another? In either case, the form under which the original matter re-appears should be treated as a disguise; and the extent of the transformation shows only the extent to which the disguise has been carried, as long as anything remains which the original author can show to be justly and exclusively his own."

(k) in Newbury's case, Lofft's R. 775, Lord Chancellor Apsley, after consulting Mr. Justice Blackstone, said that "they were agreed that an abridgment, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narrative, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work." In the previous case of Gyles v. Wilcox, 2 Atk. 141, it was held, that merely leaving out certain passages of the

We cannot close this chapter upon the exceedingly257 av obscure topic of infringement, without remarking, what our notes will show, that the inherent difficulties of the question have been increased by the extreme diversity of the views taken by different courts and writers, of the extent and character of the exclusive right given by the law of copyright, and of interference with it. This is perhaps inevitable. Nor would it be possible to mend the matter much by positive enactment or legislative definition. All we can hope for is, that, as time goes on, and these questions pass under adjudication again and again, there may be a gradual recognition of and a general assent to certain fundamental principles, which may give the solution of the ques

tion as it arises under various circumstances and in different forms.

Under the [section] concerning dramatic compositions, it would seem that there may be an infringement by making use of the same series of events, although not in the same language. (kk)1

SECTION IV.

REMEDIES AT LAW OR IN EQUITY.

The statute provides that one who infringes upon a copyright, besides certain forfeitures, "shall pay such damage as may be recovered in a civil action by such proprietor, in any court of competent jurisdiction." (1)

*257 aw

*Another section determines in what courts cases under the laws of copyright shall be cognizable, and what power the courts shall have. (m)

The most efficacious remedy, and that most frequently sought, is relief in equity by injunction. This relief, to be effectual, must be a perpetual injunction. This, however, is only granted after a final hearing and a full opportunity of defence.

well in equity as at law, whether civil or penal in their nature, by the circuit courts of the United States, or any district court having the jurisdiction of a circuit court, or in the Supreme Court of the District of Columbia, or any Territory. And the court shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as the court may deem reasonable."

1 There are a few cases where protection is given from infringement of rights analogous to those given by copyright, though the provisions of the copyright statutes do not afford protection. Thus, one who is presenting on the stage an unpublished and uncopyrighted drama or opera, may obtain an injunction against unauthorized presentations thereof. Goldmark v. Kreling, 25 Fed. Rep. 349; Aronson v. Fleckenstein, 28 Fed. Rep. 75; Tompkins v. Halleck, 133 Mass. 32; Aronson v. Baker, 43 N. J. Eq. 365. But not if the drama or opera has been published. Carte v. Duff, 15 Fed. Rep. 739; Carte v. Ford, 25 Fed. Rep. 183. A lecturer may obtain an injunction against the publication of notes of his lectures. Caird v. Sime, 12 App. Cas. 326; Nicols v. Pitman, 26 Ch. D. 374. One who has had a photograph taken may enjoin the photographer from printing additional copies from the negative and exhibiting or selling them. Pollard v. Photographic Co. 40 Ch. D. 345.

The plaintiff usually prays for an immediate injunction. The court may grant at once an injunction to continue until the hearing, or until further order; or may refuse it. If refused, this would generally be done on some of the following grounds: First. That the copyright of the plaintiff's book is made invalid by the character of the book. This course has been taken But if it was

more readily, we think, than it would be now. obvious on inspection, or could be made apparent, that the book was immoral or treasonable, or otherwise itself a violation of law, its copyright would not, as has already been intimated, be protected. (n)

Second. If the plaintiff had been guilty of delay and neglect in making his application, he could not expect the prompt relief of an immediate injunction, although whatever rights he proved on a final hearing would be protected. (0)

Third. The court would consider where would be the preponderance of the mischief caused, on the one hand by an

injunction, or on the other by a refusal. This must *257 ax depend upon the character of the book, and of the sale,

and upon other similar circumstances. While the merits of the case are in doubt, as they must be in the mind of the court until a final hearing, the court would be unwilling to do a great harm to one party, to prevent a small mischief to another. Hence, if the book complained of was such that its sale could be only temporary, and would, however great now, last but a brief period, an injunction until a hearing would be fatal, and as injurious, in fact, as a perpetual injunction. In such case, the court would not grant such an injunction, unless on a clear case of merit on the one side and wrong on the other. (p)

Fourth. The plaintiff should, in his bill, state his title, whether derivative or original; and describe the infringement not very specifically, (q) but so a to show to the court what it was. If the allegations are sustained by affidavit, or are confessed, the temporary injunction might issue. Formerly, equity would not thus interfere until the plaintiff had proved his title by a trial at

(n) Southey v. Sherwood, 2 Meriv. 435; Walcot v. Walker, 7 Ves. 1; Hime v. Dale, 2 Camp. 27, n.; Lawrence v. Smith, 1 Jac. 471; Burnett v. Chetwood, 2 Meriv. 441; Perceval v. Phipps, 2 V. & B. 26.

(0) Saunders v. Smith, 3 My. & Cr. 711; Rundell v. Murray, 1 Jac. 311; Platt v. Button, 19 Ves. 447; Baily v. Taylor, 1 Russ. & M. 73; Mawman で。 Tegg,

VOL. II.

22

2 Russ. 285; Lewis v. Chapman, 3 Beav. 133; Buxton v. James, 5 De G. & Sm. 80; Robinson v. Wilkins, 8 Ves. 224 n.

(p) Spottiswoode v. Clarke, 2 Phil. 154; McNiel v. Williams, 11 Jur. 344; Bramwell v. Halcomb, 3 My. & Cr. 737; Saunders v. Smith, 3 My. & Čr. 711.

(2) Sweet v. Maugham, 11 Sim. 51. 337

law. (r) Now, this is not required as a matter of course. It is believed, however, that if, on the plaintiff's own showing, there was a real doubt as to his title, or as to his having suffered any certain wrong, an injunction would be refused. (s) But if he had what has been called " a clear color of title," - legal or equitable (t) and makes out a prima facie case, a temporary injunction will be given him upon such terms as the rights and interests of all parties seem to require. (u)

* 257 ay

*It may be added, that, if the mischief by the infringement be obviously insignificant, the court will not

hear the case. (v)

It may be that the infringement complained of is of such a kind that its existence may be ascertained at once by inspection. This, then, the court will do. But in this country it is seldom that the judges go into any detailed comparison of the two books, to ascertain whether there be or be not an infringement. In England, it may be inferred from some cases that the courts go farther in this direction than they do here. (w) With us it is a very general practice to refer the case to a master, with general directions, or sometimes with very special directions, to examine the two books, and report in detail all the facts he finds, which may bear upon the question of infringement. Upon this report the final hearing is usually had. (x)

The bill commonly prays for an account by the defendant.

(r) Baskett v. Cunningham, 2 Eden, 137; Jeffreys v. Baldwin, Ambl. 164; Blanchard v. Hill, 2 Atk. 485; Hills v. Univ. of Oxford, 1 Vern. 275; Redfield v. Middleton, 7 Bosw. 649, 2 Story, Eq. Juris. § 935.

(s) In such case the motion for injunction is usually directed to stand over till the hearing, or till after a trial at law, the defendant in the mean time being ordered to keep an account of the number of copies sold; but where circumstances require it, an injunction is sometimes granted pending the trial of the legal right See Walcot v. Walker, 7 Ves. 1; Wilkins v. Aikin, 17 Ves. 422; Jollie v. Jacques, 1 Blatchf. 626; Miller . McElroy, 1 Am Law Reg. 205, and cases cited supra, note (p).

(t) Sweet v. Cater, 11 Sim. 572; Colburn v. Duncomb, 9 Sim. 151.

(u) Mawman v. Tegg, 2 Russ 385; Bohn v. Bogue, 10 Jur. 420; Univ. of Oxford v. Richardson, 6 Ves. 689, 706; Chappell v. Purday, Y. & C. 485; Pier pont v. Fowle, 2 Wood. & M. 35. As to the extent of the injunction where only

part of the original work has been appropriated, see ante, note (d).

() Baily . Taylor, 1 Rus. & M. 73; Whittingham . Wooler, 2 Swanst. 428; Webb v. Powers, 1 Wood. & M. 522.

(w) Jarrold v. Houlston, 3 K. & J. 708; Spiers v. Brown, 6 W. R. 352; Pike v. Nicholas, L. R. 5 Ch. Ap. 251; Murray v. Bogue, 1 Drew. 368.

(x) The American practice is thus stated by Judge Story: "In some cases of this nature a court of equity will take upon itself the task of inspection and comparison of books alleged to be a piracy. But the usual practice is to refer the subject to a master, who then reports whether the books differ, and in what respects; and upon such a report the court usually acts in making its interlocutory, as well as its final decree." 2 Story, Eq. Jur. § 941. See also Folsom v. Marsh, 2 Story, 100; Webb v. Powers, 2 Wood. & M. 497; Story v. Holcombe, 4 McLean, 306; Greene v. Bishop, 1 Clif. 186; Lawrence v. Dana, C. C. U. S. Mass. Dist. 1869.