PART I. CHAPTER XVIIL General law United States. CHAPTER XVIII. AMERICAN LAW OF COPYRIGHT. THE general law on the subject of copyright is the same throughout the throughout the whole of the United States, since the Federal Constitution of 1789, (a) gave to the Supreme Congress "power to promote the progress of science and useful arts, by secaring for limited times to authors and inventors the exclusive right to their respective writings and discoveries; also to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." Local copyright. Copyright Acts. Terms of copyright. But, though a particular state cannot take away from an individual the property given him by an Act of Congress, and though the laws of such state are inoperative as against the laws of the United States with which they may come in collision,(b) yet if an author or inventor, instead of resorting to the Act of Congress, should apply to the Legislature of a particular state for an exclusive right to his production, there is nothing to hinder that state granting it, though the operation of such grant would be confined to the limits of the state. (c) And the use of the property is exclusively of local cognisance. Like all other property, it must be used and enjoyed within each state, according to the laws of such state. (d) The first Act on the subject of copyright was passed in 1790. Chap. 15 of that Act (designed "for the encouragement of learning by securing the copies of maps, charts, and books, to the authors and proprietors of such copies") fixed the term of copyright at fourteen years, with a right of renewal for fourteen years more, if at the expiration of the first term the author were living, and a citizen of or resident in the United States. This Act was repealed by an Act passed in 1831, which, amended and enlarged by subsequent Acts (passed in 1834, 1846, 1856, 1859, 1861, 1865, 1867), continued in force down to July, 1870, when an Act was passed to revise, consolidate, and amend the statutes relating to copyrights and patents, repealing the previous enactments on the subject. The term of copyright fixed by the Act of 1870 is twenty-eight years from the time of recording the title thereof, with a right of renewal for fourteen years more (a) Art. 1, sect. 8. (b) See Gibbons v. Ogden (9 Wheat. 186). (c) Livingston v. Van Ingen (9 Johns. 581). (d) Ib. PART I. (thus making the whole term forty-two years), if, at the expiration of the first period, the author, inventor, or CHAPTER XVIII. designer, is still living, and a citizen of the United States, or resident therein. If he has died, leaving a widow or children, the same exclusive right is continued to them for the further term of fourteen years. But, in either case, all the conditions as to recording the title of the work, &c., required in the first instance, must be observed with respect to this renewed copyright within six months before the expiration of the first term. A copy of the record must, also, within two months from the date of the renewal, be published in one or more newspapers printed in the United States, for the space of four weeks. (a) A claim under a renewal necessarily involves the validity of the right under the first as well as under the second term. (b) It is now settled, however the matter may have been formerly regarded, that copyright is dependent solely on the statute law; and that an author cannot set up any common law right to the exclusive printing or publishing of his work. (c) Even what has been termed copyright before publication Unpublished is not, in America, dependent solely on the common law. manuscripts. Sect. 102 of the Act of 1870 provides that any person who shall print or publish any manuscripts whatever, without the consent() of the author or proprietor first obtained (if such author or proprietor be a citizen of the United States or resident therein) shall be liable to said author or proprietor for all damages occasioned by such injury, to be recovered by action on the case in any court of competent jurisdiction. The similar enactment in the statute of 1831 was held not to take away the right of property which the author possesses at common law in his works before publication, and which he may protect by action at law, or by claiming the aid of a Court of Chancery, which will be given on general equitable principles. (e) An author has a common law right in his manuscript until he relinquishes it by contract or some equivocal act.(ƒ) A surreptitious publication of an important part of a (a) Sect. 88. (b) Wheaton v. Peters (8 Pet. 663.) (e) Dudley v. Mayhew (3 Coms. 12); Wheaton v. Peters (8 Pet. 661); Clayton v. Stone (2 Paine, 383). (d) The Act of 1831 (now repealed) required this consent to be in writing, signed in the presence of two or more credible witnesses: (Sect. 9.) (e) Woolsey v. Judd (4 Duer. 385; Wheaton v. Peters (8 Pet. 657); Jones v. Thorne (1 N. Y. Leg. Obs. 409); Bartlett v. Crittenden (4 M‘Lean, 301). See also Hoyt v. M Kenzie (3 Barb. Ch. 323). (f) Bartlett v. Crittenden (5 M Lean, 36, 38). PART I. manuscript is as much within the statute as if the manuscript CHAPTER XVIII, were complete; and the whole of a manuscript need not be printed. (a) Definition of copyright. Subject matters is granted. The enactment as to unpublished manuscripts operates in favour of a resident of the United States, who has acquired the proprietorship of an unprinted literary composition from a non-resident alien author; but it gives no redress for an unauthorised theatrical representation. (b) Copyright has been defined to be "an exclusive right to the multiplication of copies for the benefit of the author or his assigns, disconnected from the plate or any other physical existence."(c) Sect. 86 of the Act enumerates the subject matters in in white. which copyright is granted. It provides "that any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print or photograph, or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns, shall, upon complying with the provisions of this Act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatise, or to translate their own works." Who may possess copyright. The Act confers copyright only on those who are citizens of the United States, or resident therein. The word "resident" has been interpreted to mean permanently resident; so that a person temporarily residing in America, even though he has declared his intention of becoming a citizen, cannot take or hold a copyright. (7) Nor can the assignee of a work composed by a non-resident alien obtain a copyright in it. (e) The illiberality of the rule, which requires permanent residence in order to entitle to copyright, contrasts very disadvantageously with the rule of our law on the subject, as laid down in the cases of Jeffreys v. Boosey and Low v. Routledge (ante, pp. 27, 33). (a) Bartlett v. Crittenden (5 M'Lean, 39, 40). PART I. Sect. 103 provides that nothing contained in the Act shall be construed to prohibit the printing, publishing, importa- CHAPTER XVIII. tion, or sale of any book, map, chart, dramatic, or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States, nor resident therein. The degree of originality required, in order to entitle a Originality. book to the protection of the Act, is the same as English courts require. To constitute one an author he must, by his own intellectual labour applied to the materials of his composition, produce an arrangement or compilation new in itself. (a) But one who gets another or others to compile a work or engrave a print is not entitled to copyright. (b) In the case of subjects open to all, the work of another must not be copied, but recourse must be had to the original sources.(c) A book within the meaning of the Act may consist of a single sheet, as the words of a song, or the music accompanying it. (d) But a newspaper or price current is not a book within the meaning of the Act. (e) No person is to be "entitled to a copyright" unless, Requisites to be before publication, he deposits in the mail a printed copy of observed. the title of the book, or other article, or a description of the painting, drawing, chromo, statue, statuary, or model or design for a work of the fine arts, for which he desires a copyright, addressed to the librarian of Congress, and also, within ten days from the publication, deposits in the mail two copies of such copyright book, or other article, or in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same, to be addressed to the said librarian of Congress. (f) Two complete printed copies of the best edition of every copyright book or other article, or description or photograph of such article as before required must be "mailed" by the proprietor to the librarian of Congress at Washington, within ten days after publication, and also a copy of every subsequent edition in which substantial changes are made, under a penalty of twenty-five dollars.(g) (a) Atwill v. Ferrett (2 Blatch. 46). See per Story, J., quoted ante, pp. 79, 80. (b) Pierpont v. Fowle (2 Wood. & Min. 46); Atwill v. Ferrett (2 Blatch. 46). (c) Blunt v. Patten (2 Paine, 400, 401); Emerson v. Davies (3 Story, 781); Gray v. Russell (1 Story, 17). (d) Clayton v. Stone (2 Paine, 383, 391). (e) lb. (f) For the requisites which had to be observed before this Act, see Jollie v. Jacques (1 Blatch. 618). (g) Sects. 93, 94. PART I. The copyright book or other article may be sent to the CHAPTER XVIII. librarian of Congress by mail, free of postage, provided the words "copyright matter" are plainly written or printed on the outside of the package; (a) and the postmaster to whom it is delivered must, if requested, give a receipt for it, and forward it without cost to its destination. (b) If a work is published without a copyright being secured, this is a dedication of it to the public, and any one may republish it. (c) The publication of an official report under the direction of Congress, and for the benefit of the public, is a dedication of it and of what is contained in it, to the public, and any one may reprint it. (d) On the book being sent to the librarian of Congress, that officer is to record the name of the copyright book or other article forthwith in a book to be kept for that purpose, in the words following: "Library of Congress to wit. Be it remembered that on the day of Anno Domini 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 copyrights.-C. D., Librarian of Congress." He is also to give a copy of the title or description, under the seal of the librarian of Congress, to the proprietor whenever he requires it.(e) For recording the title or description, the sum of fifty cents is to be paid to the librarian, and the same amount for every copy under seal. For recording any instrument of assignment of copyright, fifteen cents. must be paid for every hundred words, and for every copy thereof, ten cents for every hundred words. All these moneys when received are to be paid into the treasury of the United States. (f) Notice of entry. To entitle the proprietor to maintain an action for the infringement of his copyright, a further requisite must be observed a notice must be given by inserting in the general copies of every edition published, on the title-page, or the page immediately following, if it be a book, or if a map, (a) Sect. 95. (b) Sect. 96. (c) Bartlett v. Crittenden (5 M'Lean, 37). (d) Herne v. Appletons (4 Blatch., cited Law's Digest of Patent, Copyright, and Tradesmark Cases, p. 214). () Sect. 91. (f) Sect. 92. |