who paid for a course of instruction in a system for training the memory was held to be a publication notwithstanding that each sale was made under a contract not to disclose the contents to others.1 A book may be published although it is not sold but issued on loan to subscribers with an express condition that the copy must be returned on the expiry of the subscription. Publication of a book in a serial form reserving all other rights to the author, is such a publication as to abandon the copyright to the world, if steps have not been taken to copyright it before such publication.3

I have little doubt, but there is no definite authority, that a book may be published so as to destroy the common law right, although it is not printed. Circulation in manuscript would be enough.*

The public performance of a dramatic piece is not a publication of it so as to deprive the proprietor of his common law right in the manuscript. The same rule probably applies to the oral delivery of a lecture or sermon, unless there is some act or circumstance from which it can be implied that the speaker intended to abandon the literary matter to the free use of the public.

6

It has been held by the Circuit Court of Appeals that the exhibition of a picture in a public gallery is a publication of the picture so as to destroy the owner's rights, unless he has taken steps to secure a copyright. One of the three judges dissented from the judgment, but on what ground does not appear. In a case decided by a district judge, shortly before the one just cited, the judge thought that the exhibition of a

1 Larrowe v. O'Loughlin (1898), 88 Fed. Rep., 896.

2 Jeweller's v. Jeweller's (1898), 155 N. Y., 241; Ladd v. Oxnard (1896), 75 Fed. Rep., 703. 3 Holmes v. Hurst (1898), 174 U.S. Rep. 82; Holmes v. Donohue (1896), 77 Fed. Rep., 179; Mifflin v. Dutton (1901), 107 Fed. Rep., 708.

4 See Bartlett v. Crittenden (1847), 4 M. L., 301; Rees v. Peltzer (1874), 75 Ill., 475; Keene v. Wheatley (1860), 9 Am. L. Rep., 45; Palmer v. De Witt (1872), 47 N. Y., 532.

5 Palmer v. De Witt (1872), 47 N.Y., 532 ; Aronson v. Fleckenstein (1886), 28 Fed. Rep., 75; Bartlett v. Crittenden (1847), 4 M'L., 301; Boucicault v. Hart (1875), 13 Blatchf., 47; Tompkins v. Halleck (1882), 133 Mass., 32; Keene v. Wheatley (1860), 4 Phil., 157; Keene v. Kimball (1860), 16 Gray, 549; Boucicault v. Fox (1862), 5 Blatchf., 87; Crowe v. Aiken (1870), 2 Biss., 208; Thomas v. Lennox (1883), 14 Fed. Rep., 849; Keene v. Clarke (1867), 5 Rob. (N.Y.), 38; Shook v. Rankin (1875), 6 Biss., 477; French v. Maguire (1867), 55 How. (N. Y.) Prac., 471.

6 Pierce v. Werckmeister (1896), 72 Fed. Rep., 57.

7 Werckmeister v. Springe (1894), 63 Fed. Rep., 808.

painting in a public saloon did not work a forfeiture of the right to obtain copyright unless the general public was permitted to take copies at pleasure, and such permission would not be assumed in the absence of direct evidence. The same judge decided that neither the sale of a replica in a different size made before the principal picture by way of a study nor the publication of a crayon sketch in an exhibition catalogue was a publication of the picture. It is submitted that the exhibition of a picture in a public gallery is a publication. It seems to afford the public an opportunity of making every legitimate use of the contents of the picture. They could not make any greater use of the contents if they bought an engraving of the picture. It would not even then be lawful for them to make copies of the picture. As to the replica and the rough sketches in the catalogue, no doubt they were not "copies" of the picture, and therefore their publication could not entirely destroy the copyright in the picture; but if these were published without being copyrighted or without statutory notice, clearly the public could copy them, and to that extent the copyright in the design of the original picture would have been forfeited.

An unauthorised publication will not operate to forfeit the common law rights; but if authorised by the owner it is immaterial that the publication constitutes a breach of contract with a licensee or part assignee. Thus the author of a German unpublished play conveyed the performing rights in the United States to a citizen of the States, and contracted with him that he would not publish the play as a book. In breach of this contract the play was published in Germany under the authority of the author. It was held that such publication destroyed all literary rights in the United States. When the defendant relies on previous publication he must definitely prove such publication, and that it was made with the consent of the owner.1

The Library of Congress.-All the copyright records are in

1 Palmer v. De Witt (1872), 47 N.Y., 532; Boucicault v. Wood (1867), 2 Biss., 34; Crowe v. Aiken (1870), 2 Biss., 208. 3 Ibid.

2 Daly v. Walrath (1899), 40 App. Div., N. Y., 220. 4 Boucicault v. Wood (1867), 2 Biss., at p. 39.

the Library of Congress at Washington, and are kept by the Librarian of Congress, who makes an annual report to Congress of the number and description of copyright publications.

The Librarian of Congress must record the name of each copyright work in a book kept for the purpose. The form of entry is as follows:

"Library of Congress, to wit,-Be it remembered that on the day of A. B. of , hath deposited in this office the title of a book (map, chart, or otherwise as the case may be, or description of the article), the title or description of which is in the following words, to wit: (here insert the title or description), the right whereof he claims as author (originator or proprietor as the case may be), in conformity with the laws of the United States respecting copyright.— C. D., Librarian of Congress."

The librarian must give a copy of the title or description under the seal of the Librarian of Congress to the proprietor whenever he requires it.

The Librarian of Congress is entitled to receive from the persons to whom the services are rendered the following fees: 1_

All fees so received must be paid into the Treasury of the United States.

The charge for recording the title or description of the work of a person not a citizen of, or resident in, the United States is $1.

The Librarian forwards a note of the title-entries to the Secretary of the Treasury, who must prepare and print, at intervals of not more than a week, catalogues of such titleentries for distribution to the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails; and such weekly lists as they are

1 Act of 1891, sec. 4, amending Revised Statutes, sec., 4958; and see Act, June 18, 1874,

sec. 2.

issued are furnished to all parties desiring them at a sum not exceeding $5 per annum.1

The Secretary and Postmaster-General are empowered and required to make and enforce such rules and regulations as will prevent the importation into the United States of all articles prohibited by the Copyright Acts.2

The Postmaster to whom a copyright book, title, or other article is delivered for the Librarian of Congress must, if requested, give a receipt therefor, and when so delivered he must mail it to its destination.3

For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description, or photograph, the proprietor of the copyright is liable to a penalty of $25, to be recovered by the Librarian of Congress in the name of the United States in an action in the nature of an action of debt in any district court of the United States, within the jurisdiction of which the delinquent may reside or be found.*

SECTION IV.-IMMORAL WORKS.

A work containing immoral matter will not receive the protection of the Courts.5 A song containing the verse, "She's the hottest thing you ever seen," was not protected.6 The introduction of obscene, profane, or libellous matter into a literary or artistic work does not render it publici juris; the copyright remains, but the Court will not entertain any action upon it. Thus in Broder v. Zeno the Court said that their decision to refuse protection would not prevent the complainants from republishing their song, and by omitting the objectionable word thus secure a valid copyright. If an action is brought for the piracy of immoral matter it will be dismissed without costs to either party. The fact that a work such as playing cards

7

1 Act of 1891, sec. 4.

3 Revised Statutes, sec. 4961.

2 Ibid.

4 Revised Statutes, sec. 4960.

5 Martinetti v. Maguire (1867), 1 Abb. U.S., 356; Shook v. Daly (1875), 49 How. Prac., 366; Keene v. Kimball (1860), 16 Gray, 549.

6 Broder v. Zeno (1898), 88 Fed. Rep., 74.

7 Ibid.

may, and probably will, be used for an unlawful purpose, does not disentitle it to protection. A guide to the turf has been protected, 2 so has a list of records and trotters and pacers.3

66

SECTION V.-DURATION OF COPYRIGHT.

Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof." 4

"The author, inventor, or designer, if he be still living, or his widow or children if he be dead, shall have the same 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 copyright, 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."5

6

In Callaghan v. Myers it was said that if by an error the notice of copyright on a published book bore a date prior to the actual year of publication the result would be not that the notice was bad, but that the term of copyright would date from the year specified in the notice.

Notice that the right to obtain an extended term is not given to the "proprietor;" therefore an employer whose servant did literary or artistic work in his employment would not be entitled to an extension. It seems doubtful whether the servant in such a case, although the actual author, would be entitled to an extension: it is thought not.

If the author, inventor, or designer assigns his copyright, he does not part with his right to an extension unless this is clearly intended by the transfer.7 From the terms of the statute one might doubt whether the right to obtain an extension is assignable. No doubt a contract to assign it would be valid, and a document purporting to assign it

1 Richardson v. Miller (1877), 3 L. and Eq. Rep. (Am.), 614.

2 Egbert v. Greenberg (1900), 100 Fed. Rep., 447.

3 American Trotting Register v. Gocher (1895), 70 Fed. Rep., 237.

4 Revised Statutes, sec. 4953.

5 Act of 1891, sec. 2.

6 (1888), 128 U.S. Rep., 617.

7 Pierpont v. Fowle (1846), 2 Wood. and Min., 23, 44; Cowen v. Banks (1862), 24 How. Prac., 72; see Rundell v. Murray (1821), Jac., 315.