On these sections two questions seem to be left open :- 1. It may be that it would be a sufficient compliance with the requirements of the Act if either the author or his assignee before publication were a citizen of the United States, or a subject or citizen of a proclaimed country. Section 1 amending the Revised Statutes, sec. 4952, gives the sole liberty to "the author, inventor, designer, or proprietor, and to the executors, administrators, or assigns of any such person." Section 13 "applies the Act" to citizens or subjects of certain foreign states or nations. Under the Revised Statutes, section 4971, before 1891 it was the nationality of the author alone that was considered, and it would have been no answer to have said that the assignee before publication was an American citizen or resident in the United States. Perhaps in 1891 the benefit was designedly extended to assignees before publication, who complied with the conditions and who had taken assignments from foreign authors who did not. On the whole, however, I am inclined to the opinion that it will not do merely to allege that the assignee of the uncopyrighted and unpublished work is a citizen of the United States or a subject or citizen of one of the proclaimed countries. It must, I think, be alleged that the author, inventor, designer, or proprietor ab initio has complied with the conditions as to nationality. By proprietor ab initio (and probably this is the true meaning of "proprietor" in section I of the Act of March 3, 1891 1), I mean one who compiles a work by his servants or agents, for instance, a body corporate, which cannot be said to be an "author, inventor, or designer," and yet is entitled to the whole property in the work of its servants as it grows up from day to day. I have not con1 See Yuengling v. Schile (1882), 12 Fed. Rep., at p. 102. sidered the assignee after publication. I think it must be 2. Before 1891 residence in the United States, which was interpreted to mean permanent residence and not merely for the purposes of publication,' was sufficient to entitle an author to the privileges of the Copyright Acts. The provision now, under the Act of March 3, 1891, is that the Act shall only apply to a citizen of a foreign country which has been proclaimed. Reading the Act strictly a foreign resident in the United States but not a citizen thereof is excluded from protection which he formerly had, unless he is a citizen or subject of a proclaimed country. No doubt this was not intended to be the result of the Act of 1891, but the words are plain and unambiguous, and there seems no reason why they should not have effect according to their plain meaning. A fortiori a foreigner resident in, but not a subject of, one of the proclaimed countries would not be entitled to copyright. The following States have been proclaimed as fulfilling one or other of the required conditions, and their citizens are therefore entitled to acquire copyright in the United States in the same way as an American citizen : SECTION III. NECESSARY FORMALITIES. No person is entitled to copyright unless he-1 I. In the case of a book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or chromo (i.) Delivers (or mails within the United States) to the Librarian of Congress, on or before the day of publication, in the United States or elsewhere a printed copy of the title of the work. (ii.) Delivers (or mails within the United States) to the Librarian of Congress, not later than the day of publication, in the United States or elsewhere two copies of the work. II. In the case of a painting, drawing, statue, statuary, or a model or design for a work of the fine arts-2 (i.) Delivers (or mails within the United States) to the Librarian of Congress, on or before the day of publication, in the United States or elsewhere a description of the work. (ii.) Delivers (or mails within the United States) to the Librarian of Congress, not later than the day of publication, in the United States or elsewhere a photograph of the work. The proprietor of every copyright book or other article must deliver (or mail within the United States) to the Librarian of Congress a copy of every subsequent edition wherein any substantial changes shall be made.3 Each volume of a book in two or more volumes, when such volumes are published separately, and the first one has not been issued before July 1, 1891, and each number of a periodical is to be considered an independent publication. The requirements of the statute as to delivery of title and copies, and printing of notice must therefore be complied with in the case of each volume of a book or number of a periodical. 1 Act of March 3, 1891, sec. 3, amending Revised Statutes, sec. 4956. 2 Ibid. 3 Act of March 3, 1891, amending Revised Statutes, sec. 4959. 4 Act of March 3, 1891, sec. 11. Conditions Precedent. The deposit of title and delivery of copies as prescribed by the statutes are conditions precedent to copyright and not merely declaratory. There is no common law right after publication, and therefore if a work is published without the proper formalities having been observed it becomes publici juris, and any one may make what use of it he pleases.2 Ignorance of the law is no excuse even although a new Act has just been passed altering the time within which copies must be delivered.3 In an action for infringement the declaration must set out in detail a compliance with the law as to formalities,* and the burden of proof thereof is on the complainant.5 He must prove the deposit of title, delivery of copies, notice of copyright, and the date of publication. The latter is essential, as on it depends the validity of the entry." Delivery of the Title. The copy of the title to be delivered must be "printed," i.e. the characters used must be those ordinarily used in printing, but they may be made by hand with a pen. The work must be published within a reasonable time after the deposit of the title-page, otherwise the formalities will not have been complied with. Two months' delay in mailing to the Librarian of Congress copies of a photograph after the filing of its title is not unreasonable.9 It will not do to publish a book under a substantially different title from that deposited. Immaterial variations in the title, or sub-title, or complete alteration of a description 1 Jollie v. Jacques (1850), 1 Blatchf., 618; Struve v. Schwedler (1857), 4 Blatchf., 23; Wheaton v. Peters (1834), 8 Pet., 591; Chase v. Sanborne (1874), 4 Cliff., 306; Merrell v. Tice (1881), 104 U.S. Rep., 557; Baker v. Taylor (1848), 2 Blatchf., 82; Carte v. Evans (1886), 27 Fed. Rep., 861; Thompson v. Hubbard (1888), 131 U.S. Rep., 123; Callaghan v. Myers (1888), 128 U.S. Rep., 617; Parkinson v. Lascelle (1875), 3 Sawyer, 330; Boucicault v. Hart (1875), 13 Blatchf., 47; Lawrence v. Dana (1869), 4 Cliff., 1; Ewer v. Coxe (1824), 4 Wash. C. Ct., 487. 2 Wheaton v. Peters (1834), 8 Pet., 591; Merrell v. Tice (1881), 104 U.S. Rep., 557; Banks v. Manchester (1888), 128 U.S., 244; West v. Lawyers (1896), 64 Fed. Rep., 360. 3 Osgood v. Aloe (1897), 83 Fed. Rep., 470. • Chicago v. Butler (1884), 19 Fed. Rep., 758; Parkinson v. Lascelle (1875), 3 Sawyer, 330; Merrell v. Tice (1881), 104 U.S., Rep., 557. 5 Osgood v. Aloe (1897), 83 Fed. Rep., 470. 6 Chase v. Sanborne (1874), 4 Cliff., 306. 7 Chapman v. Ferry (1883), 18 Fed. Rep., 539. 8 Jeweller's v. Jeweller's (1898), 84 Hun., 12; 155 N. Y., 241; see Scribner v. Allen (1892), 49 Fed. Rep., 854; Boucicault v. Hart (1875), 13 Blatchf., 47. 9 Falk v. Gast (1891), 48 Fed. Rep., 262. on the title-page will not make the deposit void. In Donnelley v. Ivers the title deposited was "Over One Thousand Recipes. The Lake Side Cook Book: A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. Chicago: Donnelley, Lloyd & Company, 1878." The title on the book as published was "The Lake Side Cook Book, No. 1. A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. By N. A. D." It was held that the requirement as to the deposit of title having been "substantially, in good faith complied with," the objection was not tenable. What is required is, that the deposited title be sufficient to identify the book with substantial certainty. In Carte v. Evans, the title filed was " Pianoforte Arrangement of the Comic Opera, The Mikado, or the Town of Titipu, by W. S. Gilbert and Sir Arthur Sullivan. By George L. Tracey." The book as published bore the title "Vocal Score of the Mikado, or The Town of Titipu. Arrangement for Pianoforte by George Lowell Tracey (of Boston, U.S.A.) of the above-named opera by W. S. Gilbert and Arthur Sullivan." This was held a sufficient deposit to protect the pianoforte accompaniment. In Black v. Allen the title deposited was "An Outline of the Political and Economic History of the United States, with Maps and Charts: I. History and Constitution by Alexander Johnson, M.A.; II. Population and Industry by Francis A. Walker, LL.D.” The title of the book as deposited was "United States: Part III. Political Geography and Statistics, copyright, 1888, by Francis A. Walker." In the absence of evidence that the defendant was deceived or misled by the change of the title the Court held that it was valid. In Daly v. Brady the title of a drama deposited was "Under the Gaslight: A Drama of Life and Love in these Times." The actual title as published was "Under the Gaslight: A Romantic Panorama of the Streets and Homes of New York." The Court held that the change of title might deceive the public, and therefore the deposit of title was bad; but this decision was reversed in Daly v. Webster; the variance was in the description. 3 1 (1882), 20 Blatchf., 381. 5 2 Carte v. Evans (1886), 27 Fed. Rep., 681. 4 (1889), 39 Fed. Rep., 265. 3 (1893), 56 Fed. Rep., 764. 5 (1892), I U.S. App., 573. |