the plaintiff to insist on his legal rights. A right may perhaps be abandoned by allowing numerous members of the public to exercise it without licence or objection.2

Pleading. In pleading, the plaintiff does not have to allege the facts which make him proprietor. If it is disputed, it is for the defendant to allege and prove facts to the contrary. The plaintiff, however, must allege specifically a compliance with the statutory formalities, although he need not allege that publication took place within a reasonable time after the deposit of the title."

In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence.6

Penalties for affixing False Notice. Every person who shall insert or impress a copyright notice, "or words of the same import, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph or other article, whether such article be subject to copyright or otherwise, for which he has not obtained a copyright, or shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country; or shall import any book, photograph, chromo or lithograph, or other article bearing such notice of copyright, or words of the same purport which is not copyrighted in this country, shall be liable to a penalty of $100, recoverable onehalf for the person who shall sue for such penalty, and one-half to the use of the United States." This section was amended in 1891 and again in 1897. It now reads as above. Before 1897 the penalty was not recoverable from one who sold copies, knowing them to contain a false notice, unless he had made the book or caused the notice

1 Hill v. Epley (1858), 31 Penn. St., 331; Lawrence v. Dana (1869), 4 Cliff., 83; Heine v. Appleton (1853), 4 Blatchf., 125; Menendez v. Holt (1888), 128 U.S., 514; Keene v. Clarke (1867), 5 Robertson, N. Y., 38, 66, 67.

6 Revised Statutes, sec. 4969; sec. 914; see Johnston v. Klopsch (1898), 88 Fed. Rep., 692.

7 Revised Statutes, sec. 4963, amended Act, March 3, 1897.

to be inserted.1 Before 1897 also there could be no conviction unless the article on which the false notice was impressed was a copyrightable article.2

The penalty is not recoverable for each copy, but for each issue. Where chromos were struck off in large numbers for advertising purposes, each separate batch being printed with a different trade name for different customers, it was held that the penalty was recoverable on each batch.3

For a notice to incur the penalty as a false notice, it is not necessary that it should have been printed as directed by the Acts. It will be subject to the penalty even although printed in another part of the book. Rough prints of a picture made for the purpose of advertisement bore a false notice, and were held to have incurred the penalty. It is not unlawful to impress a notice of copyright on a rough copy of a copyright picture, even although such copy is not separately copyrighted. Liability I will not attach unless the notice contains the essentials of a sufficient copyright notice, viz. "name," "claim of exclusive right," and "date when obtained." Thus where the date was omitted no penalties were recovered. Any one who causes a false notice to be impressed is equally liable with the person who himself impresses it.

Importing Books Printed Outside the United States.— If copyright has been secured in the United States, importation of any book, chromo, lithograph, or photograph, or any plates of the same, not made from type set, negatives, or drawings on stone made within the limits of the United States, is prohibited, either with or without the consent of the owner of the copyright, Except

1. Works printed or manufactured more than twenty years
at the date of importation.1
10

8 Rigney v. Dalton (1896), 77 Fed. Rep., 176.

Revised Statutes, sec. 4956, amended March 3, 1891, 26 S. L., 1107. 10 26 S. L., 604.

2. Books and pamphlets printed exclusively in languages

other than English.1

3. Books and music in raised print used exclusively by the blind.2

4. Works imported by authority for the use of the U.S. or the Library of Congress.3

5. Books, maps, lithographic prints and charts specially imported, not more than two copies in any one invoice, in good faith, for the use of societies, schools, colleges, &c.*

6. Books imported for use and not for sale subject to payment of duty, and not more than two copies at any one time.5

7. Newspapers and magazines, if they contain no infringement of U.S. copyright.

6

CHAPTER V

COMMON LAW RIGHTS

SECTION I-PUBLISHED WORK.

AFTER a work has been published it has no protection in the nature of copyright except under an Act of Congress.1 either from the nature of the work, or from the want of conforming with the formalities of the Act, there is no statutory protection, then there can be no exclusive right of copying the work. After a drama or musical piece has been published as a book, not only the copyright in it but also the performing right depends entirely on statutory protection. Performance on the stage not being a publication, affects neither the right of copy nor the performing right.

Although there is no right of copy in a published work except under statute, there are certain common-law rights based on fraud or implied contract which are incident thereto, and which neither depend on nor are affected by statutory protection.

Passing off. One man is not entitled so to produce his book as to lead the public to believe it is the work of another.3 The same or a similar title is the most usual method of passing off. One cannot monopolise a purely descriptive title such as "Latin Grammar" or "Guide to the Alps;" but it was held a passing off to take the title, "The Fram Expedition-Nansen in

1 Wheaton v. Peters (1834), 8 Pet., 591; Banks v. Manchester (1888), 128 U.S. Rep., 244 ; Jeweller's v. Jeweller's (1898), 155 N.Y., 241; Holmes v. Hurst (1898), 174 U.S. Rep., 82; Palmer v. De Witt (1872), 47 N.Y., 532; West v. Lawyer's (1896), 64 Fed. Rep., 360; Parton v. Prang (1872), 3 Cliff., 537; Merrell v. Tice (1881), 104 U.S. Rep., 557; Boucicault v. Hart (1875), 13 Blatchf., 47; Boucicault v. Fox (1862), 5 Blatchf., 87; Boucicault v. Wood (1867), 7 Am. L. R., 550; 2 Bis., 34; Daly v. Walrath (1899), 40 App. Div. N.Y., 220; Carte v. Ford (1883), 15 Fed. Rep., 439; Carte v. Duff (1885), 25 Fed. Rep., 183; Rees v. Peltzer (1874), 75 Ill., 475; Ewer v. Coxe (1824), 4 Wash. C. C., 487.

2 Boucicault v. Hart (1875), 13 Blatchf., 47; Daly v. Walrath (1899), 40 App. Div. N.Y., 220; Carte v. Ford (1883), 15 Fed. Rep., 439; Carte v. Duff (1885), 25 Fed. Rep., 183.

M'Lean v. Fleming (1877), 96 U.S. Rep., 245; Estes v. Williams (1884), 21 Fed. Rep., 189; Social Register v. Howard (1894), 60 Fed. Rep., 270.

2

the Frozen World;"1 so the title "Social Register to a select list of residents in a certain district was infringed by a similar list bearing the title "Howard's Social Register." It is immaterial in a question of passing off that the book itself is unprotected from copying. Thus an English magazine called "Chatterbox" was largely sold in the United States, but was not copyright. Although it would have been quite legal to have copied the English magazine and sold such copies under its own title, it was not permissible to publish another magazine under the title of "Chatterbox." 3 In another case it was held that one might not adopt the title of another's operetta for his own, even although the songs and vocal scores of the operetta had been published under the title without securing copyright.*

It is not a passing off to reprint another man's book and sell it in his own name, and if the copyright has expired he has no redress.5 He has no property in his own name as such. After the copyright had expired in "Webster's Dictionary," Webster's assignee was held to have no ground for restraining any one from reprinting and selling "Webster's Dictionary" under that title.6 Even where the name was a pseudonym, "Mark Twain," the author was not entitled to prevent others from printing and selling some non-copyright work of his as "Sketches by Mark Twain."7

A man may prevent the publication under his name of a book of which he is not the author or which has been mutilated without his authority. Henry Drummond, the evangelist, delivered a series of lectures at Boston, Massachusetts, on "The Evolution of Man." Eight out of twelve lectures were partially printed with the author's consent in the British Weekly, and no copyright was secured in America. It was held that Professor Drummond was entitled to restrain a reprint of these published lectures reproduced with material alterations, and

1 Harper v. Holman (1897), 84 Fed. Rep., 224.

2 Social Register v. Howard (1894), 60 Fed. Rep., 270.

3 Estes v. Williams (1884), 21 Fed. Rep., 189; Estes v. Leslie (1886), 27 Fed. Rep., 22. 4 Aronson v. Fleckenstein (1886), 28 Fed. Rep., 75.

5 Merriam v. Holloway (1890), 43 Fed. Rep., 450; Merriam v. Famous Shoe (1891), 47 Fed. Rep., 411. 6 Ibid.

7 Clemens v. Belford (1883), 14 Fed. Rep., 728.

8 Clemens v. Belford (1883), 14 Fed. Rep., 728; Drummond v. Altemus (1894), 60 Fed. Rep., 338.